Current through Register Vol. 63, No. 9, September 1, 2024
(1) The following conditions may result in
the Department concluding that a Dam is Potentially Unsafe:
(a) Embankment materials highly vulnerable to
internal erosion;
(b) Highly
variable and increasing rates of seepage that may lead to internal
erosion;
(c) Seismic analysis
determines significant Crest loss with little Freeboard remaining;
(d) For Dams in high seismic zones, a layer
of liquefiable material in the Dam or its Foundation;
(e) Evidence of prior large rapidly moving
landslides identified above the Dam, increasing the risk of Dam Failure from
floods and earthquakes;
(f)
Spillways are unable to pass the Inflow Design Flood as stated in OAR
690-020-0037 or Probable Maximum Flood;
(g) Issues on the Spillway invert that could
lead to rapid loss of Spillway integrity during a flood; or
(h) Any other condition that meets the
definition of Potentially Unsafe.
(2) The following conditions may result in
the Department concluding that a Dam is Unsafe:
(a) A reduction in Spillway
capacity;
(b) Movement of the Dam
over a short period of time;
(c)
Major loss of Freeboard;
(d) Wave
erosion narrowing the Crest;
(e)
Internal erosion with limited movement of Embankment material;
(f) Seepage level rising on the downstream
face of the Dam;
(g) Landslide or
other deformation on the Dam;
(h)
Rapid erosion of the Spillway;
(i)
Significant loss of mass of a concrete Dam;
(j) Concrete Spillway with large voids or
openings through the slab;
(k)
Conduit deteriorated to where Conduit collapse is reasonably
possible;
(l) A Pressurized Conduit
with holes in the pipe;
(m)
Flashboards in place during high runoff season;
(n) Animal burrows penetrating deep into the
Dam;
(o) Large trees growing near
the Crest;
(p) Building a new Dam
or increasing Dam Height without examination and written approval by the State
Engineer of site plans, specification, and other supporting information for
that Dam; or
(q) Any other
condition that meets the definition of Unsafe.
(3) Notification of Potentially Unsafe or
Unsafe Conditions. If, as a result of an inspection or analysis of a Dam that
has a High or Significant Hazard Rating the Department concludes that
corrective action is necessary to address a condition allegedly rendering the
Dam Unsafe or Potentially Unsafe, the Department shall provide written
notification to the Dam owner by registered or certified mail with return
receipt requested, sent to the address of record on file with the Department,
as per OAR 690-020-0180, for the Dam owner.
(a) The written notification shall include at
least the following:
(A) An explanation of why
the inspection or analysis of information and conditions causes the Department
to conclude that the Dam is Unsafe or Potentially Unsafe;
(B) Any action the Department concludes is
necessary to address the alleged Unsafe or Potentially Unsafe
conditions;
(C) Notice to the Dam
owner of the opportunity to meet with the Department to discuss the
notification; and
(D) Notice to the
Dam owner of the opportunity to provide information to explain why the Dam
owner disagrees with the matters asserted in the notification alleging the Dam
is Unsafe or Potentially Unsafe.
(b) Following issuance of a notification, the
Department may attempt to resolve the Unsafe or Potentially Unsafe conditions
in cooperation with the Dam owner. The Dam owner may endeavor to develop a plan
and timeframe for corrective action that is agreeable to the Department. If the
plan and timeframe are agreeable, the Department and owner may enter into a
consent order to address the corrective action for timely resolution of the
Unsafe or Potentially Unsafe conditions. In determining whether a plan and
timeframe is agreeable and developing a consent order, the Department may
consider any relevant information, including, but not limited to:
(A) The design and construction of the
specific Dam;
(B) The efforts and
resources of the Dam owner; and
(C)
The impacts associated with Dam failure.
(4) In addition to any other available
remedies, the Director may issue a Proposed Final Order in the event the
Department and the Dam owner do not agree to a plan and timeframe and enter
into a consent order to address corrective actions, if the Dam owner fails to
complete actions as provided in the consent order, in the event the Dam owner
does not otherwise address the matters identified in the notification to the
Department's satisfaction, or if the Department concludes based on inspection
or analysis that the Dam is Unsafe.
(a) The
proposed final order shall include the specific information and conditions that
have caused the Department to conclude that a Dam is Unsafe or Potentially
Unsafe, shall be consistent with ORS
183.415,
and shall provide notice of the opportunity for a contested case hearing
pursuant to ORS 183. The proposed final order shall include the notification in
subsection (3) of this section, if notification has not already been provided
for an Unsafe Dam.
(b) The proposed
final order may include, but need not be limited to, any or all of the
following provisions:
(A) A requirement that
the Dam owner consult with an Engineer to assess the nature and extent of the
Unsafe or Potentially Unsafe conditions identified by the Department and, as
necessary, to identify corrective actions to address the Unsafe or Potentially
Unsafe conditions;
(B) Commencement
and completion dates for any corrective action the Department determines is
necessary to remedy the Unsafe or Potentially Unsafe conditions;
(C) Restrictions on the maximum Water level
in the reservoir until corrective action has been completed to the satisfaction
of the Department;
(D) Provisions
directing that the Dam may not be used for the impoundment, restraint, or
conveyance of Water until corrective actions have been completed to the
satisfaction of the Department;
(E)
A requirement to install and maintain monitoring equipment if the Department
concludes that monitoring is necessary to protect life, property, or public
infrastructure. The provisions requiring the installation and use of monitoring
equipment at a Dam to monitor the Unsafe or Potentially Unsafe conditions shall
include the ability to the use the most economical monitoring equipment
sufficient to protect life, property, and public infrastructure as determined
by the Department.
(5) Upon issuance of a proposed final order,
the Dam owner and Department may enter into a consent order to resolve the
matters in the proposed final order as provided in ORS
183.417.
Any such document must include conditions to address the matters in the
proposed final order as determined by the Department.
(6) If, following issuance of a proposed
final order regarding a Dam that the Department has concluded is Unsafe, the
Department receives a request for hearing from the Dam owner, the Director may
request that the scheduling of any contested case hearing be expedited, and the
Office of Administrative hearings shall expedite the contested case hearing to
the extent that the office considers it practicable and will give the Dam owner
reasonable time to prepare.
(a) In determining
the expedited timeline practicable, the Office of Administrative Hearings shall
consider, based on information provided by the Department, any conditions that
may affect the urgency of the proceedings or the likelihood that Unsafe
conditions may pose near-term threat to life, property, or public
infrastructure.
(b) The reasonable
time to prepare for a contested case hearing shall be based on the likelihood
that Unsafe conditions may pose a near-term risk to life, property, or public
infrastructure.
(7)
Issuance of a proposed final order does not preclude the Department from
pursuing any and all lawful remedies as the Department may determine are
necessary to protect life, property, or public infrastructure including, but
not limited to, seeking injunctive relief in the circuit court as provided in
ORS 540.473.
(8) In addition to any
other available lawful remedies, if a proposed final order issued under this
section becomes final by operation of law or on appeal, and the Dam owner fails
to comply with the order as specified in the order, the Director may request
the Attorney General or the district attorney of any county where all or part
of the Dam is located to bring an action declaring the Dam a public nuisance
and ordering its Removal at the owner's expense.
Statutory/Other Authority: ORS
536.027,
540.488
Statutes/Other Implemented: ORS 540.458, 540.461, 540.470,
540.473, 540.476
