Transportation, Distribution and Logistics Alert -- Act 13: Distributing The Cost Of Increased Road Deterioration

by McNees Wallace & Nurick LLC
Contact

[authors: Barbara A. Darkes and James J. Franklin]

Anyone who has traveled on a Pennsylvania highway knows that road deterioration and maintenance issues are a significant concern in the Commonwealth. Indeed, for many years various studies and surveys have ranked Pennsylvania as having the worst roads of any state in the country. Unfortunately, the boom in Marcellus Shale exploration and development has only worsened this problem. Specifically, PennDOT has noted that hauling associated with the Marcellus Shale industry has caused a significant increase in the number and frequency of heavy loads using state roads and secondary routes. In many cases, these roads and routes simply do not have the structural integrity to support such heavy loads at this increased frequency, which has caused accelerated deterioration of these roads and amplified the amount of resources required to maintain them.

In an effort to reduce this impact and pay for the increased maintenance costs, Pennsylvania has seen a 68% increase in the number of state routes posted with weight restrictions. As a result, almost ¼ of all state routes have posted weight restrictions, and that percentage increases every day. Typically any hauler who utilizes a route with a load that exceeds the posted weight restrictions will have to bond that route, thus making them partially financially responsible for the increased damage and maintenance costs caused by their use. One consequence of this scheme, however, is that haulers, local businesses, and other local traffic that have operated on these routes for years without restriction or bonding requirements now find themselves having to share in the excess financial burden and responsibility supposedly attributable to Marcellus Shale related activity.

Governor Corbett became increasingly concerned that these traditional haulers and local traffic were shouldering a disproportionate share of the financial maintenance burden. In response, earlier this year the Governor signed Act 13 into law. The purpose of Act 13 is to provide a temporary scheme by which PennDOT can better identify and distinguish between those over-posted-weight haulers that cause significant damage to the Commonwealth’s highway system from those over-posted-weight haulers that cause minimal road damage.

Act 13 attempts to accomplish this goal in three ways. First, the existing law and regulations that allow for vehicles to self-certify as “local traffic,” have been maintained. Essentially, if a hauler or driver can only get to its destination via a posted road, even if that is its own commercial establishment, it may not have to bond the road. If a hauler or driver meets this “local traffic” definition, it will not obtain any formal approval from PennDOT, but it should carry documentation proving its origination and/or destination. Businesses who believe they meet this definition should educate their drivers and suppliers on this exemption so that they can better communicate with law enforcement during any stop and hopefully avoid a citation. Additionally, businesses should be alert for any notice from PennDOT that it has made a determination that the vehicles over the posted weight being driven to your location are likely to damage the highway. PennDOT is authorized to do so and such a determination, which must be provided in writing, effectively destroys the local traffic exemption.

Second, Act 13 allows haulers to apply for a letter of local determination if their business activity falls within an “at-risk” industry, meaning that the industry has suffered a 20% decline in employment since 2002. The U.S. Census Bureau maintains a list on its website of industries that fall within this category. If a hauler does meet this definition, they can apply to PennDOT for a letter of local determination, which will generally allow them to utilize the necessary posted routes without any bond requirement.

Third, under Act 13, haulers can also obtain a letter of local determination if PennDOT deems them a “de minimis” hauler. By “de minimis,” Act 13 means a hauler determined not likely to cause damage to a particular posted road. PennDOT has a list of criteria it uses to make this determination, including the weight and frequency of the hauler’s anticipated loads and the structure and integrity of the posted route in question. If satisfied that the hauler meets this definition, PennDOT will issue the letter of local determination, though PennDOT may place limits on the hauler’s activity, including the number of loads the hauler may take on the route in a given time period. If a hauler receives a de minimis letter, it may utilize the necessary posted routes without any bond requirement. A hauler may obtain a letter under both the at-risk industry and de minimis standards.

If a hauler receives a letter of local determination, it must make sure to carry that letter with them at all times while traveling on those posted routes. The hauler should also still carry documentation establishing its destination. Pursuant to the Act, the maximum effective period of any letter is 12 months, with PennDOT determining the specific effective period of any given letter. Notably, Act 13 precludes hauling related to “unconventional oil and gas development” – think Marcellus Shale-related activity – from qualifying as local traffic and from receiving a letter of local determination under either standard. Currently, Act 13 is scheduled to remain in effect through the year 2015.

Act 13 may provide significant benefits to haulers that satisfy its standards and definitions. Haulers should use caution, however, as the Act’s provisions contain several detailed requirements and restrictions.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McNees Wallace & Nurick LLC | Attorney Advertising

Written by:

McNees Wallace & Nurick LLC
Contact
more
less

McNees Wallace & Nurick LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.