Current through Register Vol. XLI, No. 50, December 13, 2024
Section 157-3-9 - Legal Relations and Responsibility to Public9.1. Laws to be Observed. The contractor shall keep fully informed of all federal and state laws, all local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. The contractor shall at all times observe and comply with all such laws, ordinances, regulations, orders, and decrees; and shall protect and indemnify, defend and hold DOH harmless from any and all claims, liabilities and causes of action for any fines or penalties imposed on DOH by any state or federal agency because of violation by contractor or any of its subcontractors and/or consultants of any state or federal law or regulation.9.2. Permits, Licenses and Taxes. The contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the work.9.2.a. The contractor shall provide the division with sufficient documentation that all applicable taxes have been paid within 120 days of the project acceptance as provided for in subsection 7.16 of this rule. The division shall have the right to revoke the contractor's prequalification until the contractor provides sufficient documentation that all taxes have been paid or are the subject of a timely filed dispute currently pending in a court or other body having legal authority and jurisdiction to hear the dispute.9.3. Patented Devices, Materials, and Processes. If the contractor employs any design, device, material, or process covered by letters of patent or copyright, he or she shall provide for such use by suitable legal agreement with the patentee or owner. The contractor and the surety shall indemnify and save harmless the division, any affected third party, or political subdivision from any claims for infringement by reasons of the use of any such patented design, device, material or process, or any trademark or copyright, and shall indemnify the division for any costs, expenses, and damages which it may be obligated to pay by reason of any infringement, at any time during the prosecution or after the completion of the work.9.4. Restoration of Surfaces Opened by Permit. The right to construct or reconstruct any utility service in the highway or street or to grant permits for same, at any time, is hereby expressly reserved by the division for the proper authorities of the municipality in which the work is done, and the contractor shall not be entitled to any damages either for the digging up of the street or for any delay occasioned thereby.9.4.a. Any individual, firm, or corporation wishing to make an opening in the highway must secure a permit from the division. The contractor shall allow parties bearing such permits, and only those parties, to make openings in the highway. The contractor shall, when ordered by the engineer, make in an acceptable manner all necessary repairs due to such openings and such necessary work will be paid for as "Extra Work", or as provided in these specifications, and will be subject to the same conditions as original work performed.9.5. Federal-Aid Provisions. When the United States government pays any portion of the cost of a project, the federal laws and the rules and regulations made pursuant to such laws must be observed by the contractor, and the work shall be subject to the inspection of the appropriate federal agency.9.5.a. Such inspection shall in no sense make the federal government a party to the contract and will in no way interfere with the rights of either party hereunder.9.6. Sanitary Provisions. The contractor shall provide and maintain in a neat, sanitary condition such accommodations for the use of his or her employees as may be necessary to comply with the requirements of the state and local boards of health, or of other bodies or tribunals having jurisdiction. The contractor shall not create, commit, or maintain a public nuisance.9.7. Public Convenience and Safety. The contractor shall at all times conduct his or her work as to assure the least possible obstruction to traffic. The safety and convenience of the general public and the residents along the highway and the protection of persons and property shall be provided for by the contractor as specified under subsection 6.5 of this rule.9.7.a. The contractor shall comply with all applicable federal, state, and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his or her own responsibility, or as the engineer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.9.7.b. The contractor and any subcontractor shall not require any laborer or mechanic employed in performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health or safety, as determined under construction safety and health standards (Title 29, Code of Federal Regulations, Part 1926, formerly Part 1518, as revised from time to time), promulgated by the United States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96).9.7.c. Safety Plan. The contractor shall comply with this subdivision if the total contract bid amount exceeds $2,000,000 or is otherwise noted on the plans. The contractor will provide a copy of the company comprehensive safety and health program and the name of the company safety officer at the preconstruction conference or prior to start of work. A copy of the comprehensive safety and health program for each subcontractor and the name of the company safety officer must be submitted with the request for subcontract approval. The company comprehensive safety and health program should be in accordance with ANSI A10.38-1991, "Basic Elements of an Employer Program to Provide a Safe and Healthful Work Environment" or equivalent. 9.7.c.1. A site specific safety plan covering the work of the prime contractor and all known subcontractors must be prepared and submitted at the preconstruction conference or prior to the start of work. The site specific plan must include the name of the competent person(s) responsible for safety at the project site. As additional subcontracts are negotiated, the site specific safety plan for that work can be submitted with the subcontract request.9.7.c.2. Contractor employees shall be provided hazard recognition and avoidance training. Further, newly employed workers shall be provided safety orientation training prior to being assigned any task. This training can be provided by the contractor or the contractor's representative. Likewise, training provided by other sources based on an employee's initiative or his or her affiliation with the other groups is permissible. All training should be current and up to date with appropriate refresher courses provided if previous training was not within the last three years.9.7.c.3. All contractor safety training shall be administered or monitored by the contractor's qualified representative, known as the company safety officer. "Qualified" means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his or her ability to solve or resolve problems relating to the subject matter, the work or the project. Acceptable training for this individual to be considered qualified includes, but is not limited to, completion of the 30-hour OSHA 500 Trainer Course in Occupational Safety and Health Standards for the Construction Industry or its equivalent.9.7.c.4. The contractor or Subcontractor working on the project will conduct weekly safety "toolbox" talks to discuss relevant safety issues and this meeting will be open to attendance and active participation by the on-site Division of Highways staff.9.8. Railway-Highway Provisions. The contractor shall comply with the following provisions when performing any operations within the existing right of way of the railroad or when railroad protective insurance is required by the contract documents. Railroad protective insurance shall include all of the work set forth in subsection 9.8 of this rule with exception of the provisions of subdivisions 9.8.g and 9.8.h.9.8.a. Notice of Starting Work. The Contractor shall not start any work on railroad right-of-way until he has complied with the following conditions: 9.8.a.1. Give the railroad's chief engineer written notice at least ten days in advance of the date he proposes to begin work on or adjacent to the railroad right of way.9.8.a.2. Obtain written approval from the railroad of the railroad protective insurance coverage as required herein: Provided that the railroad shall not unreasonably withhold its approval.9.8.a.3. Unless an Order made by a court pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a otherwise expressly authorizes, the contractor shall obtain written authorization from the railroad to begin work on railroad right of way. This authorization can be expected within two weeks after insurance has been approved.9.8.b. Insurance. The Contractor shall secure and provide, until all work under the terms of the project is satisfactorily completed and accepted, insurance requirements set forth in the project plans.9.8.c. Use of Grade Crossings. If the Contractor desires a temporary grade crossing of the Railroad's tracks other than that shown in the project plans; to use an existing private grade crossing; or to use an existing public grade crossing with unlicensed construction equipment unless an Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a expressly authorizes, the contractor shall make arrangements in writing with the railroad and will be required to bear all costs, including railroad protective services incidental to such crossings.9.8.d. Interference with Railroad Operations. All work to be performed by the contractor shall be performed in a manner which does not impede rail operations or pose undue safety risks and otherwise provides that works are planned to be so constructed as not to impede the passage or transportation of persons, property, or commodities. Generally, this shall be accomplished by means of strict adherence to the agreements with the railroad. The contractor shall use reasonable care and diligence and cooperate with officials of the railroad in order to avoid accidents, damages, or unnecessary delay to, or interference with train movement of the railroad.9.8.d.1. When work within railroad right of way is of a nature that it impedes railroad operations such as, but not limited to, use of runaround tracks or the necessity for reduced speed, the contractor shall schedule and conduct his operations so that such impediment is reduced to the absolute minimum.9.8.d.2. Any cost incurred by the railroad for repairing damages to its property or to property of its tenants, caused by or resulting from the operations of the contractor, shall be paid directly to the railroad by the contractor.9.8.d.3. The contractor shall assume all liability for any and all damages to his work, employees, subcontractor, equipment, and materials caused by railroad traffic.9.8.d.4. No charge or claim of the Contractor against either the Division or the Railroad will be allowed for hindrance or delay on account of train traffic, work done by railroad, delay incident to or necessary for safe operation and maintenance of the railroad or any delays due to compliance with these special provisions.9.8.e. Construction Procedures. It shall be the contractor's responsibility to arrange a schedule with the railroad for accomplishing his work and the railroad's or its tenants' work. The contractor in arranging a schedule shall ascertain, from the railroad, the lead time required for assembling crews and materials and shall make allowance therefor. 9.8.e.1. The contractor shall submit to the railroad's chief engineer, with a copy to the Division of Highways, work schedule and information regarding methods and procedures for performing work, e.g., plans and specifications for shoring and sheeting, and for protective shields covering all railroad facilities. Unless an Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a authorizes, the work, the contractor shall obtain railroad approval before commencing said work.9.8.e.2. The contractor shall take special precaution and care when excavating for shoring pits and footers adjacent to tracks and in driving piles to always provide adequate lateral support for the tracks and the loads which they carry, so as not to disturb the track alignment and surface and to avoid obstructing track clearances with working equipment, tools, or materials.9.8.e.3. A copy of the contractor's blasting sequence will be provided to the railroad for their information prior to any blasting. The contractor shall obtain specific approval of the railroad's chief engineer for use of explosives on railroad property.9.8.e.4. All construction equipment that is parked near the track shall be effectively immobilized so that it cannot be moved by unauthorized persons.9.8.e.5. Materials and equipment shall not be stored where they will interfere with railroad operations, nor on the right of way of the railroad without first having obtained written permission from the railroad's chief engineer or unless authorized by an Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a.9.8.e.6. The contractor will be required to maintain all ditches and drainage structures and keep them free of silt or other obstructions, to promptly repair eroded areas within railroad right of way and to repair any other damage to the property of the railroad or its tenants which may be the results of their operations.9.8.e.7. Upon completion of the work, the contractor shall remove from within the limits of the railroad's right of way, all machinery, equipment, surplus materials, falsework, rubbish, or temporary buildings which belong to the contractor and leave said right of way in a condition satisfactory to the railroad's chief engineer.9.8.f. Track Clearances. The minimum track clearances to be adhered to by the contractor during construction will be 15 feet (3 m) from centerline of the track or as approved by the railroad's chief engineer. However, before undertaking any work within railroad right of way or before placing any obstruction over any track, the contractor shall: 9.8.f.1. Notify the railroad's chief engineer at least 72 hours in advance of work.9.8.f.2. Receive assurance from the railroad's chief engineer that arrangements have been made for any railroad protective services necessary unless authorized by an Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a.9.8.f.3. Receive permission from the railroad's chief engineer to proceed with the work, unless authorized by an Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a.9.8.g. Railroad Protective Services (Flagging). Under the terms of the agreement between the division and the railroad, the railroad has sole authority to determine the need for railroad protective services required to protect its operations. In the event an Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a, permits work to commence and work is to proceed in accordance with the plans, the contractor shall notify the railroad of the date work shall start and provide it an opportunity to provide railroad protective services should it wish. The railroad shall not be permitted to create delay or increase costs to Highways by simply refusing to provide railroad protective services. In such event it will nonetheless be the responsibility of the contractor to determine whether the work can proceed in the absence of such and to make suitable adequate substitute arrangements. The requirements and specifications related to obtaining railroad protective services from the railroad or its authorized consultant will be detailed in the project plans and documents for each of Highway's projects.9.8.h. Failure To Comply. In the event the contractor violates or fails to comply with any of the requirements of these provisions:9.8.h.1. The railroad's chief engineer may require that the contractor vacate railroad property unless work is proceeding pursuant to Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a.9.8.h.2. The Division may stop all work adjacent to the railroad.9.8.h.3. Any such orders shall remain in effect until the contractor has remedied the situation to the satisfaction of the railroad's chief engineer and the Division, unless work is proceeding pursuant to Order made pursuant to W.Va. Code § 54-1-9 or § 54-2-14 a,9.8.h.4. All costs incurred resulting from compliance with these provisions shall be incidental to the items in the contract and no separate payment shall be made.9.9. Bridges Over Navigable Waters. All work on navigable waters shall be so conducted that free navigation of the waterways will not be interfered with and that the existing navigable depths will not be impaired except as allowed by permit issued by the U. S. Army Corps of Engineers.9.10. Barricades and Warning Signs. The contractor shall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices, except as provided by subsection 6.5 of this rule, and he or she shall take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, and obstructions shall be illuminated during hours of darkness. Suitable warning signs shall be provided to properly control and direct traffic.9.10.a. The contractor shall erect warning signs in advance of any place on the project where operations may interfere with the use of the road by traffic and at all intermediate points where the new work crosses or coincides with an existing road. Such warning signs shall be erected in accordance with the plans furnished.9.10.b. All barricades, warning signs, lights, temporary signals, and other protective devices must conform with the latest edition of the manual "Traffic Control for Street and Highway Construction and Maintenance Operations," published by the West Virginia Division of Highways, and the provisions of 715.9, Standard Specifications, Roads and Bridges" adopted 2010.9.11. Use of Explosives. When the use of explosives is necessary for the prosecution of the work, the contractor shall exercise the utmost care not to endanger life or property, including new work. The contractor shall be responsible for any and all damage resulting from the use of explosives.9.11.a. All explosives shall be stored in a secure manner, in compliance with all laws and ordinances, and all such storage places shall be clearly marked. Where no local laws or ordinances apply, storage shall be provided satisfactory to the engineer and in general not closer than 1,000 ft. from the road or from any building or camping area or place of human occupancy.9.11.b. The contractor shall notify each public utility company, having structures in proximity to the site of work, of his or her intention to use explosives and such notice shall be given sufficiently in advance to enable the companies to take such steps as they may deem necessary to protect their property from injury.9.12. Protection and Restoration of Property and Landscape. The contractor shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land monuments and property marks until the engineer has witnessed or otherwise referenced their location and shall not move them until directed. 9.12.a. The contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the work, resulting from any act, omission, neglect, or misconduct in his or her manner or method of executing the work, or at any time due to defective work or materials, and this responsibility will not be released until the project shall have been completed and accepted.9.12.b. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct in the execution of the work, or in consequence of the non-execution thereof by the contractor, he or she shall restore, at his or her own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding or otherwise restoring as may be directed, or he or she shall make good such damage or injury in an acceptable manner.9.13. Forest Protection. In carrying out work within or adjacent to state or national forests, the contractor shall comply with all regulations of the State Fire Marshal, Division of Natural Resources, or any other authority having jurisdiction, governing the protection of forests and the carrying out of work within forests, and shall observe all sanitary laws and regulations with respect to the performance of work in forest areas. The contractor shall keep the areas in an orderly condition, dispose of all refuse, obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks, and other structures in accordance with the requirements of the Forest Supervisor. 9.13.a. The contractor shall take all reasonable precaution to prevent and suppress forest fires and shall require his or her employees and subcontractors, both independently and at the request of forest officials, to do all reasonably within their power to prevent and suppress and to assist in preventing and suppressing forest fires and to make every possible effort to notify a forest official at the earliest possible moment of the location and extent of any fire seen by them.9.14. Responsibility for Damage Claims. The contractor shall indemnify and save harmless the division, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the contractor, its subcontractors and/or consultants; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of the contractor its subcontractors and/or consultants; or because of any claims or amounts recovered from any infringements of patent, trademark, or copyright; or from any claims or amounts arising or recovered under the "Worker's Compensation Act," or any other law, ordinance, order, or decree; and so much of the money due the contractor under and by virtue of their contract as may be considered necessary by the division for such purpose may be retained for the use of the division or, in case no money is due, their surety may be held until such suit or suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and suitable evidence to that effect furnished to the division; except that money due the contractor will not be withheld when the contractor produces satisfactory evidence that the contractor is adequately protected by public liability and property damage insurance.9.15. Opening Sections of Project to Traffic. At the option of the engineer, certain sections of the work may be opened for traffic. Such opening will not constitute acceptance of the work, or any part thereof, or a waiver of any provisions of the contract; provided however, that on such portions of the project as are accepted for use of traffic, the contractor shall not be required to assume any expense entailed in maintaining the roadway for traffic. Such expense will be borne by the division or will be compensated for in the manner provided hereinafter in subsection 11.4 of this rule. Any damage to the highway not attributable to traffic which might occur on such section, except slides, shall be repaired by the contractor at his or her expense. The removal of slides shall be performed by the contractor and payment will be in accordance with subsection 6.3 of this rule.9.15.a. If the contractor is dilatory in completing shoulders, drainage structures, or other features of the work, the engineer may order all or a portion of the project open to traffic, but in such event the contractor shall not be relieved of his or her liability and responsibility during the period the work is so opened prior to final acceptance. The contractor shall conduct the remainder of his or her construction operations so as to cause the least obstruction to traffic.9.16. Contractor's Responsibility for Work. Until final written acceptance of the project by the engineer, the contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the nonexecution of the work. The contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof except damage to the work due to unforeseeable causes beyond the control of and without the fault of or negligence of the contractor, including but not restricted to acts of God, of the public enemy or governmental authorities.9.16.a. In case of suspension of work from any cause whatever, the contractor shall be responsible for the project and shall take such precautions as may be necessary to prevent damage to the project, provide for normal drainage and to erect any necessary temporary structures, signs, or other facilities at his or her expense. During such period of suspension of work, the contractor shall properly and continuously maintain in an acceptable growing condition all living material in newly established plantings, seedings, and soddings furnished under his or her contract, and shall take adequate precautions to protect new tree growth and other important vegetative growth against injury.9.17. Contractor's Responsibility for Utility Property and Services. At points where the contractor's operations are adjacent to properties of railway, telegraph, telephone, and power companies, or are adjacent to other property, damage to which might result in considerable expense, loss, or inconvenience, work shall not be commenced until all arrangements necessary for the protection thereof have been made. 9.17.a. The contractor shall cooperate with the owners of any underground or overhead utility lines in their removal and rearrangement operations in order that these operations may progress in a reasonable manner, that duplication of rearrangement work may be reduced to a minimum, and that services rendered by those parties will not be unnecessarily interrupted.9.17.b. In the event of interruption to water or utility services as a result of accidental breakage, or as a result of being exposed or unsupported, the contractor shall promptly notify the proper authority and shall cooperate with such authority in the restoration of service. If water service is interrupted, repair work shall be continuous until the service is restored. No work shall be undertaken around fire hydrants until provisions for continued service have been approved by the local fire authority.9.18. Furnishing Right-Of-Way. The division will be responsible for securing all necessary rights-of-way in advance of construction. Any exceptions will be indicated in the contract.9.19. Personal Liability of Public Officials. In carrying out any of the provisions of these specifications, or in exercising any power or authority granted to them by or within the scope of the contract, there shall be no liability upon the commissioner, engineer, or their authorized representatives, either personally or as officials of the state, it being understood that in all such matters they act solely as agents and representatives of the division.9.20. No Waiver of Legal Rights. The division shall not be precluded or estopped by any measurement, estimate, or certificate made either before or after the completion and acceptance of the work and payment therefore, from showing the true amount and character of the work performed and materials furnished by the contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the work or materials do not in fact conform to the contract. The division shall not be precluded or estopped, notwithstanding any such measurement, estimate, or certificate and payment in accordance therewith, from recovering from the contractor or his or her sureties, or both, such damage as it may sustain by reason of his or her failure to comply with the terms of the contract. Neither the acceptance by the division or any representative of the division, nor any payment for or acceptance of the whole or any part of the work, nor any extension of time, nor any possession taken by the division, shall operate as a waiver of any portion of the contract or of any power herein reserved or of any right to damages. A waiver of any breach of the contract shall not be held to be a waiver of any other or subsequent breach.9.21. Protection of Rivers, Streams, and Impoundments, Pollution Control Quality. 9.21.a. Erosion and Siltation Control. The contractor shall be responsible for water quality throughout the duration of construction in accordance with the National Pollutant Discharge Elimination System (NPDES) permit registration with the West Virginia Department of Environmental Protection Agency (WVDEP). The contractor will responsible for the following:
9.21.a.1. Developing and implementing an effective erosion and sediment control plan.9.21.a.2. Directing the construction, operation, maintenance and dismantling of temporary erosion and sediment control features.9.21.a.3. Implementing remedial action to correct and/or repair failing erosion and sediment control features.9.21.a.4. Implementing storm and winter shutdown procedures.9.21.a.5. Shaping the earthwork prior to the suspension of grading operations each day in a manner that will permit storm runoff with minimum erosion.9.21.a.6. Installing, operating, and maintaining erosion and sediment control features in an acceptable condition.9.21.a.7. Cleaning out and restoring to original conditions any erosion or sediment control feature that has reached half of its capacity. For sediment basins, one half of its capacity is considered as wet volume storage.9.21.a.8. The contractor shall prepare a spill prevention, control, and countermeasures (SPCC) plan that itemizes specific measures that will be implemented to prevent and clean up chemical and petroleum product spills that may occur during all phases of construction. Fuel storage and refueling activities, equipment maintenance activities and equipment washing will be kept at least 500 feet away from any watercourse or wetland.9.21.a.9. Any details not shown in the plans shall be in accordance with the latest version of the West Virginia Division of Highways Erosion and Sediment Control Manual. In the event that temporary erosion and sediment control measures are necessary due to the contractor's negligence, carelessness or failure to install permanent controls as part of the work as scheduled, such work shall be performed by the contractor at his own expense.9.21.a.10. In addition to the above, the contractor shall make themselves familiar with all requirements contained within the WVDEP's General Water Pollution Control Permit, Stormwater Associated with Construction Activities Permit Number WV0115924. A copy of this permit can be found at the following internet address: http://www.dep.wv.gov/WWE/Programs/stormwater.9.21.a.11. Noncompliance with permit conditions constitutes a violation of the Clean Water Act and State Code and is subject to enforcement action by the WVDEP.9.21.a.12. At the project's pre-construction conference, the contractor shall submit to the department in addition to the appropriate number of erosion and sediment control plans, the co-applicant #1 signature page (Exhibit 1 as defined in paragraph 9.21.a.25. of this rule) and the contractor's E&S manager contact.9.21.a.13. The contractor's E&S contact shall contain the following information: the name, title, mailing address and telephone number of the person who will be responsible for the erosion and sediment control plans, implementation, maintenance, etc., for the life of the NPDES registration.9.21.a.14. Upon completion of the pre-construction conference, the department will modify the existing NPDES registration for this project to make the contractor the number one co-applicant to the permit. Once this has been completed, the contractor shall be responsible for any and all fees, violations and fines assessed against the project that is a result of the contractor's negligence, carelessness, or failure to install permanent controls as part of the work as scheduled.9.21.a.15. Once the project is complete, the contractor will still bear responsibility for the NPDES registration until either a Notice of Termination (NOT) is received from the WVDEP or the contractor has received final payment for the project. If a NOT has not been received by the time the final payment is made, the department will modify the NPDES registration to remove the contractor's name from the registration.9.21.b. Pollution. The contractor shall exercise every reasonable precaution throughout the life of the project to prevent pollution of rivers, streams, or impoundments. Pollutants such as chemicals, fuels, lubricants, bitumens, raw sewage, products associated with bridge cleaning and painting, and other harmful waste shall not be discharged into or alongside of rivers, streams, impoundments or into natural or man-made channels leading thereto. The quality of the surface waters affected by construction shall meet the requirements of the Water Pollution Control Act, W. Va. Code § 22-11-1et seq.9.21.b.1. The manual entitled, "West Virginia Division of Highways, Best Management Practice for Containment/Disposal of Waste Products Generated During Bridge Cleaning and Painting Activities", latest edition, as amended is made part of the contract as a guide to follow for containment/disposal activities.9.21.c. Basis of Payment. Except when pay items are specifically described and furnished as pay items in 642, Temporary Project Water Pollution Control, Standard Specifications Road and Bridges, Adopted 2010, the water pollution and erosion and siltation control requirements set forth herein shall be at the expense of the contractor.9.22. Plant Pest Regulations. The indiscriminate movement of nursery stock, hay or straw mulch, equipment, and soil samples into and out of West Virginia constitutes a potential hazard to state and national agriculture. Therefore, it shall be the responsibility of the prime contractor to comply with all applicable state and federal Plant Pest Regulations in the fulfillment of this contract. 9.22.a. Information regarding these regulations may be obtained from Plant Pest Control Division, West Virginia Department of Agriculture, Charleston, West Virginia 25305, or United States Department of Agriculture, Agriculture Research Service, Plant Pest Control Division, P. O. Box 1257, Roanoke, Virginia, 24001.9.23. Air Pollution Control. The contractor shall exercise every reasonable precaution throughout the life of the project to keep air pollution to a minimum. The contractor shall also comply with the applicable regulations of the West Virginia Air Pollution Control Commission. During times of limited dispersion, construction operations may be suspended. 9.23.a. All plants in West Virginia producing bituminous concrete for the division shall obtain a permit or certification from the West Virginia Air Pollution Control Commission.9.24. Clean Water Act/Wetlands. The contractor will comply with all aspects of 33 USC 1344 (Section 404 of the Clean Water Act) including any and all regards to wetlands on all work associated with the project. A wetland will not be filled or disturbed on the project or any work related to the project such as a haulroad, waste area, borrow pit or any other activity without a permit.9.25. Lead Exposure In Construction. The contractor will comply with all aspects of 29 CFR Part 1296, Lead Exposure in Construction, by the United States Department of Labor, Occupational Safety and Health Administration.9.26. Notification of Abatement, Demolition or Renovation. 9.26.a. The notification for projects involving abatement, demolition, or renovation will conform to this section. The project engineer will have a copy of all asbestos inspection reports available at the field office. The contractor shall provide copies of all notifications and correspondence to the project engineer.9.26.b. Abatement. Abatement activities shall conform to section 681 of the Standard Specifications Roads and Bridges, adopted 2010.9.26.c. Demolition. 9.26.c.1. Asbestos Containing Materials Reported. Notifications will be in accordance with paragraph 9.26.d.3. of this rule.9.26.c.2. No Asbestos Containing Materials Reported. For buildings or bridges that do not contain asbestos, only the notification form must be submitted to the West Virginia Division of Environmental Protection (DEP) and the United States Environmental Protection Agency (EPA) at the address given in paragraph 9.26.d.3. of this rule.9.26.c.2.A. If an asbestos inspection report indicates that there is no asbestos present on a bridge scheduled for demolition or renovation, the need for a trained individual to be on site during either process is waived. However, the contractor shall have an individual trained in accordance with the provisions as set forth in 40 CFR Part 61, Subpart M on site to observe building demolition and file a report with the project engineer indicating if any suspect (asbestos containing) material was encountered during demolition. A copy of the individual's current training certification must be attached to this report.9.26.d. Renovation. 9.26.d.1. Asbestos Containing Materials Reported. For projects involving the renovation of a bridge or building that has asbestos containing materials, the contractor shall submit a "Notification of Abatement, Demolition or Renovation" in accordance with paragraph 9.26.d.3. of this rule.9.26.d.2. No Asbestos Containing Materials Reported. Structures that are being renovated and are free of asbestos, per the inspection report, do not require submittal of the "Notification of Abatement, Demolition or Renovation".9.26.d.3. Notifications. In accordance with state and federal regulations, the contractor shall submit a "Notification of Abatement, Demolition or Renovation" to the address shown below prior to the commencement of demolition of any building or bridge (regardless of the presence of asbestos). All notifications must be made a minimum of 10 working days prior to the commencement of demolition or renovation operations. Particular attention is to be made to the "schedule" section of the form. If for any reason, demolition or renovation cannot begin on the date as submitted, the DEP, Office of Air Quality must be notified at the address below: West Virginia Division of Environmental Protection
Office of Air Quality
601 57th Street S.E.
Charleston, West Virginia 25304
Attn: Asbestos Coordinator
Telephone: (304) 926-0499
Fax: (304) 926-0478
United States Environmental Protection Agency
Rich Ponak, Asbestos Program Coordinator
U.S. EPA Region 3
Pesticides/Asbestos Program and Enforcement Branch 3LC62
1650 Arch Street
Philadelphia, PA 19103-2029
Phone: (215) 814-2029
Email: Ponak.Rich@epa.gov
9.26.d.4. If a building or bridge contains asbestos, the notification process as outlined in section 681 of the Standard Specifications Roads and Bridges, adopted 2010 shall be followed.9.27. Construction Access and Environmental Permits. The division has obtained permits for activities shown in the contract documents. The anticipated Temporary Construction Access (TCA) methods are included, if a TCA is not shown in the plans, or the permit, it has been determined that at least one TCA method exists that does not require a permit. A copy of these permits is in the contract documents. 9.27.a. The contractor must comply with the approved permits and exercise best environmental management practices at no additional cost to the division.9.27.b. The permits do not cover waste or borrow sites, haul roads, storage sites, staging areas or activity not shown in the contract documents or permits. These permits are to be handled in accordance with subsection 9.2 of this rule.9.27.c. Temporary Construction Accesses. A temporary construction access is any road, cofferdam, causeway and/or stream crossing, access fill, dike, channel retaining structure, etc. that may be required to access the work. This work shall consist of the construction of all temporary construction access required for the project and shall include, but is not limited to, all culverts, structures, excavation, rock borrow and incidental construction as required to construct the access. This work shall also include all necessary work required to maintain and remove the temporary construction access and to restore the area to its original condition. All of the work shall be in accordance with these specifications and in reasonably close conformity with the contract documents, approved permits, or as established by the engineer.9.27.c.1. No payments shall be made for the temporary construction access unless otherwise stated in the plans.9.27.d. Changing Temporary Construction Accesses. The contractor may elect to utilize alternate temporary construction access methods from those shown in the contract documents. If the contractor proposes alternate temporary construction access methods, he shall obtain written approval from all affected landowners and shall provide to the engineer all of the permit documents required to obtain additional or revised permits. The division will submit the permit documents to the appropriate agencies for approval. Acceptance of the permit documents by the engineer or forwarding them to the permitting agency does not guarantee or constitute approval of the permit. No work shall be performed on a permittable activity until a copy of all the appropriate approvals and permits are received by the engineer. No time extensions or additional payments will be made for the contractor to obtain additional approvals or permits or for changes to the design of the temporary construction access.9.27.e. Excavated Material. The excavated material, unless otherwise directed by the engineer, shall be utilized for backfill or embankments. Surplus material shall be disposed in accordance with section 207.6 of the Standard Specifications Roads and Bridges, adopted 2010 and in such a manner that the efficiency or appearance of the structure shall not be impaired, and the stream shall not be obstructed or excess sediment introduced into the stream.9.27.f. Corps of Engineers Permit. If this project has been determined to involve activities, which are regulated by the Department of the Army, Corps of Engineers a permit has been included in the contract documents. These activities involve the discharge of dredge or fill materials into the waters of the United States as regulated by Section 404 of the Clean Water Act or the obstruction or alteration of navigable waters of the United States regulated by Section 10 of the River and Harbor Act of 1899. 9.27.f.1. The engineer will decide all questions that may arise as to the interpretation or violation of these conditions. The contractor shall comply with the conditions of the permits and the following.9.27.f.1.A. Material will not be stockpiled in the watercourse.9.27.f.1.B. Bilge, ballast, or wash water pumped from barges or out of cofferdams will not be discharged into the watercourse without acceptable removal of solids, oils and/or toxic compounds.9.27.f.1.C. Discharges shall be avoided during fish spawning seasons to the maximum extent practicable unless a note prohibiting such discharge is included in the construction plans.