Administering Highway Administering Highway Construction ContractsConstruction Contracts

Environmental Environmental ConcernsConcerns

Know What is Know What is in the in the CONTRACT CONTRACT and the and the PLANSPLANS

MDT MDT Standard SpecificationsStandard Specifications

• Contractor’s Responsibilities to the public:Contractor’s Responsibilities to the public:– 107.01, 107.02, 107.11.1, 107.11.2107.01, 107.02, 107.11.1, 107.11.2

• Contractor’s duties:Contractor’s duties:– 108.03108.03

• Water pollution control:Water pollution control:– 208.01, 208.03.1, 208.03.2 208.01, 208.03.1, 208.03.2

Stream Protection 208.03.4Stream Protection 208.03.4

These are just examples.These are just examples.

Standard specs cont’d…Standard specs cont’d…

• Most relate to waterMost relate to water

• The Specs may be rewritten on The Specs may be rewritten on occasion and probably won’t occasion and probably won’t change the contractor’s change the contractor’s responsibilities, but be aware that responsibilities, but be aware that these can change from time to these can change from time to time.time.

INDEMNITY PROVISIONSINDEMNITY PROVISIONS

– Indemnity (exculpatory) Indemnity (exculpatory) provisions do exist (107.01)– but-provisions do exist (107.01)– but-

(1) Don’t mean much to the (1) Don’t mean much to the regulatory agencies, andregulatory agencies, and

(2) Have not been tested in (2) Have not been tested in Court.Court.

KNOW THE PERMITSKNOW THE PERMITS

• Environmental compliance doesn’t end with the Environmental compliance doesn’t end with the acquisition of the permits. That’s where it acquisition of the permits. That’s where it begins.begins.– (1) Read the permits and ask questions(1) Read the permits and ask questions– (2) Have the permits posted on site – This is (2) Have the permits posted on site – This is

a legal requirement.a legal requirement.– (3) Bring the permits to the attention of the (3) Bring the permits to the attention of the

contractor and distribute a copy. contractor and distribute a copy. At At Preconstruction if possible.Preconstruction if possible.

– (4) Document compliance or lack thereof.(4) Document compliance or lack thereof.

IF YOU ARE ASKED, ARE THE IF YOU ARE ASKED, ARE THE PERMITS IN PLACE?PERMITS IN PLACE?

• Just say:Just say:• (1) Read the contract – “You tell me”(1) Read the contract – “You tell me”• (2) Contact the Environmental Section in (2) Contact the Environmental Section in

HelenaHelena• (3) Suggest they contact the regulatory (3) Suggest they contact the regulatory

agencies – Local, state, federal or tribalagencies – Local, state, federal or tribal• (4) Explain permanent structures vs. (4) Explain permanent structures vs.

temporary structurestemporary structures

ARE THE PERMITS IN PLACE ? ARE THE PERMITS IN PLACE ? (Continued)(Continued)

• (5) Document what you are asked and (5) Document what you are asked and your responseyour response..

• (6) Keep your eyes open – We can not (6) Keep your eyes open – We can not cover up or cover up or ignore. Take ignore. Take photographsphotographs

• (7) Environmental compliance is part of (7) Environmental compliance is part of the contract, and part of our jobthe contract, and part of our job

• (8) Criminal penalties are possible.(8) Criminal penalties are possible.

EXAMPLESEXAMPLES

•(1) Rosebud Creek – Northern (1) Rosebud Creek – Northern Cheyenne Cheyenne ReservationReservation

»(a) Original fine $275,000 – (a) Original fine $275,000 – All state moneyAll state money

»(b) 402 and 404(b) 402 and 404

EXAMPLESEXAMPLESCONTINUEDCONTINUED

(2) Ringling North and South(2) Ringling North and South– (a) $67,767 – State Money(a) $67,767 – State Money– (b) State Water Quality Act(b) State Water Quality Act– (c) 74 photos(c) 74 photos

3) Disposal of road kill -3) Disposal of road kill -

70 deer carcasses illegally 70 deer carcasses illegally disposed…disposed…

ExamplesExamplesContinuedContinued

(4) Sage Creek (4) Sage Creek

Message from DirectorMessage from Director

““MDT projects are in the middle of MDT projects are in the middle of the highway,right in the view of the highway,right in the view of anyone who drives our roads. anyone who drives our roads.

In addition, we have seen numerous In addition, we have seen numerous environmental permit violations on environmental permit violations on our projects. It is no wonder, then, our projects. It is no wonder, then, that our projects attract attention.”that our projects attract attention.”

PLENTYWOOD - WESTPLENTYWOOD - WEST

• $70,000 fine from EPA. All state money. $70,000 fine from EPA. All state money. No federal match No federal match..

• Criminal Charges were filed against Criminal Charges were filed against MDT Employees. Several others MDT Employees. Several others had to hire private attorneys.had to hire private attorneys.

Director’s message…cont’dDirector’s message…cont’d

• ““MDT’s goal is MDT’s goal is zero permit zero permit violationsviolations, and that goal cannot , and that goal cannot be realized until every be realized until every employee pays attention to employee pays attention to how we conduct business on how we conduct business on the project site.” (Emphasis the project site.” (Emphasis added)added)

Jordan EastJordan East

• Contractor drove through the Contractor drove through the drainagedrainage

Jordan EastJordan East

• Permits were in placePermits were in place

Jordan EastJordan East

• But contractor drove throughBut contractor drove through

Jordan EastJordan East

• The drainage and damaged itThe drainage and damaged it

Jordan EastJordan East

Last Picture of Jordan Last Picture of Jordan

• This last picture shows a wetland This last picture shows a wetland that was constructed as part of the that was constructed as part of the project. The BMPs blew out and project. The BMPs blew out and loaded the new wetland with loaded the new wetland with sediment. It has been reclaimed in sediment. It has been reclaimed in this picture.this picture.

Jordan EastJordan East

• MDT reported the violation to DEQ MDT reported the violation to DEQ and FWP. Contractor was required and FWP. Contractor was required to come up with a reclamation to come up with a reclamation plan.plan.

• Lession – Avoid the situation by Lession – Avoid the situation by knowing what is required, but if knowing what is required, but if there is a problem report it or there is a problem report it or otherwise seek help.otherwise seek help.

Ringling N & SRingling N & S

• Contractor built subgrade w/out Contractor built subgrade w/out putting in pipes. This resulted in putting in pipes. This resulted in ponding and the water eventually ponding and the water eventually broke through.broke through.

• The lesson – Again, MDT reported The lesson – Again, MDT reported the problem. It was cleaned up, the problem. It was cleaned up, and no violation was issued.and no violation was issued.

Ringling N&SRingling N&S

Ringling N & SRingling N & S

• Ponded water broke throughPonded water broke through