690-020-0340 Potentially Unsafe or Unsafe Conditions (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 History: WRD 3-2020, adopt filed 06/29/2020, effective 07/01/2020