107.

14 CONTRACTORS RESPONSIBILITY FOR ENVIRONMENTAL AND CULTURAL

RESOURCE PROTECTION
107.14.1 Environmental and Cultural Resource Studies and Approvals
Before beginning soil-disturbing activities (in accordance with Section 106.1, Contractor-
Furnished Aggregate and Borrow Sources), the Contractor shall obtain the necessary study
permits, and employ an Environmental Specialist and a Cultural Resource Professional to
conduct environmental and Cultural Resource studies at any disturbed site, including, but not
limited to the following:
1. Camp sites;
2. Plant sites;
3. Crusher sites;
4. Stockpile sites;
5. Equipment yards;
6. Borrow Pits;
7. Surfacing Pits; and,
8. Water sources.
The Contractor shall obtain the environmental and Cultural Resource approvals
regardless of land ownership. For the environmental approval, the Contractor shall use the
Department-furnished checklist Categorical Exclusion form (or equivalent form furnished by
the Department), which shall be signed by the Contractor and the Environmental Specialist.
For Cultural Resource reports, use the standard site investigation forms approved by the New
Mexico Historic Preservation Division and the New Mexico Cultural Properties Review
Committee. The Contractor shall ensure that the resource studies meet the standards of the
Department, the State historic preservation officer, and any State, tribal, or federal landmanaging
agency or entity with jurisdiction. The Contractor shall ensure that the resource
studies are in accordance with the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), the National Historic Preservation Act (16 U.S.C. 470 et seq.), and the New
Mexico Cultural Properties Act (NMSA 1978, 18-6-1 to 18-6-17), or any other successor
statutes.
The Contractor may use previously-completed environmental and Cultural Resource
studies, provided all other requirements of this Section are met.
The Contractor shall complete other coordination required by environmental regulations.
The Contractor shall submit the documentation prepared for the environmental and
Cultural Resource approvals to the Project Manager and the Environmental Program
Manager. The Department will then submit the documentation to the appropriate agencies for
approval, and will notify the Contractor when approvals have been obtained. Approvals may
take 45 Days or more after the Contractor delivers the resource studies to the Department.
Adjustments shall only be made in accordance with Section 109.5, Payment for Changes,
Differing Site Conditions and Extra Work, when the time needed to obtain approvals exceeds
Federal or State law or regulatory requirements containing time limits.
The Contractor shall comply with all conditions and commitments for protection of
resources contained in resource agency permits and in the environmental and Cultural
Resource approvals. The environmental approval is the FHWA-approved checklist categorical
exclusion, or its equivalent. The Cultural Resource approval is the concurrence letter signed
by the State historic preservation officer, or its equivalent.
The Contractor shall repair at the Contractors expense all damage to environmental or
Cultural Resources caused by the Contractors failure to meet the requirements for
environmental acceptability or abide by Department directives issued to protect resources
identified during the environmental and Cultural Resource evaluation. The nature and extent
of such repairs shall be determined after consultations between the Contractor, Department
Section 107: Legal Relations, Environmental Requirements, and Responsibility to the Public Page 61
representatives, and the regulatory authorities with management jurisdiction over the subject
resources.
107.14.2 Parking and Cleaning of Equipment
For Projects that have received environmental and Cultural Resource approvals through
programmatic categorical exclusions (e.g., pavement preservation and rehabilitation, guardrail
replacements, Bridge deck replacements, signalization upgrades, etc.), environmental and
Cultural Resource studies will not have been completed by the Department. These Projects
will be noted as such in the Contract. For these Projects, the Contractor shall take special
care when parking and cleaning Equipment, as outlined in the following requirement.
The intent of the following requirement is to ensure the protection of sensitive
environmental and Cultural Resources that may be present within the Right of Way and to
encourage the Contractor to avoid damaging these resources when parking and cleaning
Equipment. The Contractor shall ensure that parking and cleaning of Equipment within the
Right of Way does not damage environmental and Cultural Resources, in one (1) or a
combination of the following manners:
1. Park and clean Equipment in previously disturbed areas only;
2. Identify all parking and cleaning locations in previously undisturbed areas, prior to
construction, and complete the environmental and Cultural Resource approvals as
described in Section 107.14.1, Environmental and Cultural Resource Studies and
Approvals; or
3. Park and clean Equipment in previously undisturbed areas without completing the
environmental and Cultural Resource approvals as described in Section 107.14.1,
Environmental and Cultural Resource Studies and Approvals, and assume all risk
and liability for any damage to environmental or Cultural Resources resulting from
these actions.
107.14.3 Aquatic Resources
The Department will apply for and obtain permits and certifications required for
construction involving waters of the United States as defined by the U.S. Army Corps of
Engineers. The Contractor shall comply with the terms of the permit obtained and shall be
fully liable for consequences resulting from its failure to comply. The Department will provide
a copy of the permits and certifications in the Contract.
The Contractor shall minimize vegetation removal, soil disturbance, erosion in the vicinity
of live streams, water impoundments, wetlands, or irrigation supplies, and crossing of live
streams with heavy Equipment. The Contractor shall not refuel or perform maintenance
activities on Equipment near watercourses, nor dump or bury demolition concrete, asphalt, or
other Materials near watercourses, but these activities shall be conducted in proper
containment areas. The Contractor shall comply with the New Mexico Water Quality Act
(NMSA 1978, 74-6-1 et seq.) and applicable permits and regulations in accordance with the
federal Clean Water Act (33 USC 1251 et seq.).
The Contractor shall comply with the requirements of Section 603, Temporary Erosion
and Sediment Control, and the requirements of NPDES, and if performing Work along or
adjacent to live streams, it shall do so in accordance with the federal Clean Water Act (33
USC 1251 et seq.), the regulations and requirements of other authorities with jurisdiction.
107.14.4 Minimization of Soil Disturbance
The Contractor shall minimize damage to or removal of vegetation and trees, except as
approved in Section 104.6, Rights in and Use of Materials Found on the Work. The
Contractor shall not clear, grub, disturb, or excavate land beyond what is authorized by the
Contract. The Contractor shall remediate or replace vegetation due to unnecessary clearing
or damage, at no additional cost to the Department.
Section 107: Legal Relations, Environmental Requirements, and Responsibility to the Public Page 62
107.14.5 Air Quality Requirements and Dust Abatement
The Contractor shall perform dust abatement on the Project. The Contractor shall ensure
that burning operations, dust-producing activities, and other operations that produce
particulate matter comply with State and federal air quality regulations, as administered by the
Air Pollution Control Bureau of the NMED, applicable local air quality regulations, and the
federal Clean Air Act (42 USC 7401 et seq.).
107.14.6 Noise Abatement
If specified in the Contract, the Contractor shall not operate Equipment that emits noise
above 70 dbA, measured at a distance of 50 ft, in urban or populated rural areas during those
hours specified, and shall comply with County or municipal ordinances if they are more
stringent than the requirements in the Contract.
107.14.7 Disposal of Removed Asphalt Pavement Material
The intent of the following requirement is to ensure that removed asphalt pavement
Material does not contaminate a natural watercourse or Waters of the United States or
Surface Waters of the State (pursuant to the federal Clean Water Act, section 307; the federal
Clean Water Act, section 404, General Condition 6; the federal Clean Water Act, section 401,
Water Quality Certification; the NM Solid Waste Management Regulations, 20 NMAC 9.1; and
the NM Water Quality Control Commission Regulations, 20 NMAC 6.2.2201).
The Contractor shall dispose of removed asphalt pavement Material, not including minor
sweepings, belonging to the Department using one (1) or more of the following methods:
1. Recycling and mixing it into Base Course, Subgrade or HMA of the new Roadway,
with approval of the Project Manager; or
2. The Contractor shall break down asphalt surfacing removed from the Project to a
nominal two (2) inch size, or smaller, haul and stockpile the Material at a location
approved by the Project Manager or as indicated in the Contract.
If the Material is to be permanently placed within the Shoulder or Median, it shall
betreated by using one (1) of the following methods:
a. Machine-compacted; or
b. Sealed with an approved rejuvenating agent.
107.14.8 Disposal of Other Materials and Debris
The Contractor shall move items designated for removal without salvage, unsuitable
construction Materials, and debris from clearing and grubbing to an environmentally suitable
disposal site secured and coordinated with the appropriate regulatory agencies. The
Contractor shall not place any items in wetland areas or areas that may impact endangered
species or Cultural Resources. The Contractor shall obtain an environmental and Cultural
Resource approval in accordance with Section 107.14.1, Environmental and Cultural
Resource Studies and Approvals.
107.14.9 Underground Storage Tanks
The Contractor shall comply with applicable New Mexico and federal regulations
governing the discovery and removal of underground storage tanks (UST). The Contractor
shall report the discovery of USTs within the Right of Way (either temporary or permanent),
pits, borrow areas, storage or Equipment yards within timelines required by the NMED
Petroleum Storage Tank Bureau (PSTB). The Contractor shall remove USTs in accordance
with NMED PSTB regulations. Any adjustments shall be made in accordance with Section
109.5, Payment for Changes, Differing Site Conditions and Extra Work,
107.14.10 Hazardous Waste Material, and Reporting and Cleanup of Spills
Section 107: Legal Relations, Environmental Requirements, and Responsibility to the Public Page 63
The Contractor shall immediately report all spills regardless of cause or association with
the Work to the Project Manager if on the Right of Way, or to the property owner if outside of
the Right of Way. The Contractor shall clean up and bear all costs of spills associated with the
Work including gasoline, diesel fuel, motor oils, solvents, chemicals, toxic and corrosive
substances, and other Materials that may threaten public health or the environment. Failure to
report a pre-existing spill or spill not associated with the Work shall result in the Contractor
bearing the full cost of remediation and cleanup.
107.14.11 Prime Coat, Tack Coat, and Soil Sterilants
The Contractor shall not contaminate soils outside the Roadway Prism when applying
prime coat, tack coat and soil sterilants. The Contractor shall not contaminate arroyos,
irrigation supplies (acequias and ditches), wetlands, water impoundments, and live streams.
107.15 STATE AND FEDERAL LAND-MANAGING AGENCIES
While working within or adjacent to State or federal lands and forests, the Contractor
shall comply with all regulations of the State or federal authority having jurisdiction governing
the protection of these areas, and observe all sanitary laws and regulations. The Contractor
shall keep the areas in an orderly condition, dispose of all refuse, and obtain permits for the
construction and maintenance of all construction camps, stores, warehouses, residences,
latrines, cesspools, septic tanks, and other Structures in accordance with applicable federal or
State regulations.
107.16 PREVENTION OF FOREST AND GRASS FIRES
The Contractor shall prevent forest and grass fires. The Contractor shall notify
appropriate officials at the earliest possible moment of the location and extent of any fire. The
Contractor shall comply with fire regulations applicable to the area of Work, and furnish and
maintain firefighting Equipment and tools required in the Contract. The Contractor shall
suspend fire-hazardous operations when necessary at the direction of the Project Manager
and in accordance with Section 105.17, Contract Adjustments for Suspension of Work.
107.17 USE OF EXPLOSIVES
The Contractor shall exercise extreme care when use of explosives is necessary for the
prosecution of the Work. The Contractor shall not endanger life or property, including new
Work. The Contractor shall use, handle, load, transport, and store explosives and blasting
agents in accordance with applicable laws and ordinances, as well as title 29 CFR Part 1926
Safety and Health Regulations for Construction (OSHA) and 30 CFR Part 15.32 whichever is
more restrictive. The Contractor shall clearly mark explosives and store them securely. If no
local laws or ordinances apply, the Contractor shall store explosives not closer than 600 feet
from Roads, buildings, camping areas, or places of human occupancy. The Contractor shall
provide sufficient notice to any public utility and owner of railroad Right of Way having
Structures or facilities near the Project, of the intention to use explosives, so that they may
take steps to protect their property before detonation.
107.18 PROTECTION AND RESTORATION OF PUBLIC AND PRIVATE PROPERTY
The Contractor shall preserve public and private property including land, governmental
survey monuments, and property markers from disturbance or damage until the Project
Manager has witnessed or otherwise referenced their location, and directed their removal.
The Contractor shall restore public or private property damaged by the Contractor directly
or indirectly by any act, omission, neglect, or misconduct in the execution of the Work, or by
defective Work or Materials, or by non-prosecution of the Work, at no additional cost to the
Department and return such property to a condition equal to that existing before such damage
or injury was done, by repairing, rebuilding, or otherwise restoring as directed by the Project
Manager.
Section 107: Legal Relations, Environmental Requirements, and Responsibility to the Public Page 64
The Contractor shall maintain responsibility for damage until the Work is completed and
Accepted, or until the Department partially Accepts the affected unit in accordance with
Section 105.18.1, Partial Acceptance, or until the affected unit is opened to traffic in
accordance with Section 104.5, Maintenance of Traffic.
107.19 RESPONSIBILITY FOR THIRD PARTY CLAIMS AND DUTY TO DEFEND
The Contractor shall indemnify and hold harmless the Department and its officers,
employees and agents from and against any and all Claims and suits, liability, damages,
losses or expenses, including attorney fees and costs, to the extent that they arise out of or
are in any way connected with any act or omission of the Contractor, or its officers, employees
or agents. The Contractor agrees, at its own expense, and upon written request by the
Department, to defend any suit, action or demand brought against the Department