[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Proposed Rules]
[Pages 45032-45051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15917]
[[Page 45031]]
Vol. 85
Friday,
No. 143
July 24, 2020
Part IV
Department of Energy
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Federal Energy Regulatory Commission
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18 CFR Part 12
Safety of Water Power Projects and Project Works; Proposed Rule
Federal Register / Vol. 85, No. 143 / Friday, July 24, 2020 /
Proposed Rules
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 12
[Docket No. RM20-9-000]
Safety of Water Power Projects and Project Works
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commission is proposing to amend its regulations governing
the safety of hydropower projects licensed by the Commission under the
Federal Power Act. These regulations are intended to promote the safe
operation, effective maintenance, and efficient repair of licensed
hydropower projects and project works to ensure the protection of life,
health, and property in surrounding communities. Specifically, the
Commission proposes to revise its regulations to: Incorporate two tiers
of project safety inspections by independent consultants, codify
existing guidance requiring certain licensees to develop an owner's dam
safety program and a public safety plan, update existing regulations
related to public safety incident reporting, and make various minor
revisions.
DATES: Comments are due September 22, 2020.
ADDRESSES: You may send comments, identified by RM20-9-000, by either
of the following methods:
Agency Website: Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format.
Mail: Those unable to file electronically may mail
comments to: Federal Energy Regulatory Commission, Secretary of the
Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered
comments should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Comment
Procedures section of this document.
FOR FURTHER INFORMATION CONTACT: Ken Fearon (Technical Information),
Office of Energy Projects, Federal Energy Regulatory Commission, 888
First Street NE, Washington, DC 20426, (202) 502-6015,
[email protected]
Doug Boyer (Technical Information), Office of Energy Projects, Federal
Energy Regulatory Commission, 805 SW Broadway, Suite 550, Portland, OR
97205, (503) 552-2709, [email protected]
Tara DiJohn (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426, (202) 502-8671, [email protected]
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph
Nos.
I. Background............................................... 4
II. Discussion.............................................. 14
A. Review, Inspection, and Assessment by Independent 21
Consultants............................................
B. Owner's Dam Safety Program........................... 69
C. Public Safety and Miscellaneous Updates.............. 76
III. Regulatory Requirements................................ 87
A. Information Collection Statement..................... 87
B. Environmental Analysis............................... 107
C. Regulatory Flexibility Act........................... 108
D. Comment Procedures................................... 118
E. Document Availability................................ 122
1. The Federal Energy Regulatory Commission (Commission or FERC),
under Part I of the Federal Power Act (FPA), licenses hydropower
projects that are developed by non-Federal entities including
individuals, private entities, states, municipalities, electric
cooperatives, and others. Under section 10(c) of the FPA, the licensee
of any hydropower project under the jurisdiction of the Commission must
conform to ``such rules and regulations as the Commission may from time
to time prescribe for the protection of life, health, and property.''
\1\
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\1\ 16 U.S.C. 803(c).
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2. Since early 2017, the Commission has solicited, received, and
reviewed expert opinions on the structure and implementation of the
Commission's dam safety program, particularly the provisions for
independent consultants' safety inspections required under part 12,
subpart D of the Commission's regulations.\2\ These independent
consultant safety inspections, commonly referred to as part 12
inspections, are facilitated by licensees and are in addition to the
dam safety inspections conducted by Commission staff.
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\2\ 18 CFR part 12.
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3. To address expert recommendations on the part 12 inspection
process, and to codify guidance issued by the Commission's Office of
Energy Projects, Division of Dam Safety and Inspections (D2SI) over the
past several years, the Commission proposes to revise its rules in
Title 18, part 12 of the Code of Federal Regulations. Under this
proposal to revise the Commission's part 12 regulations, the entirety
of subpart D will be replaced, a new subpart F will be added, and minor
revisions will be made to subparts A, B, C, and E.
I. Background
4. Section 10(c) of the FPA requires licensees, in pertinent part,
to ``maintain the project works in a condition of repair adequate . . .
for the efficient operation of said works in the development and
transmission of power,'' to ``make all necessary renewals and
replacements,'' and to ``conform to such rules and regulations as the
Commission may from time to time prescribe for the protection of life,
health, and property.'' \3\
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\3\ 18 U.S.C. 803(c).
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5. Pursuant to FPA section 10(c), on December 27, 1965, the
Commission's predecessor agency, the Federal Power Commission (FPC), in
Order No. 315, promulgated regulations that require licensees to
provide complete safety inspections of licensed water power project
works by independent consultants at five-year intervals, or more
frequently if necessary.\4\ Order No. 315 was intended to supplement
D2SI staff's inspections of project works with detailed periodic
inspections overseen by an independent consultant.\5\
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\4\ Hydroelectric Licensed Projects-Inspections to Insure Safe
Operation, Order No. 315, 34 FPC 1551 (1965).
\5\ Id.
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6. On January 21, 1981, the Commission issued Order No. 122 to
consolidate the Commission's orders, regulations, and practices
relating to project safety under part 12 of the Commission's rules and
to revise the existing project safety inspection regulations.\6\ The
Commission's rules related to independent consultant safety inspections
have not been substantially revised or amended since 1981.
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\6\ Water Power Projects and Project Works Safety, Order No.
122, FERC Stats. & Regs. ] 30,225 (1981) (cross-referenced at 14
FERC ] 61,041).
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7. To ensure that the Commission's dam safety program remains
current with the evolving nature of the dam safety field, D2SI staff
issues, and periodically updates, Engineering Guidelines for the
Evaluation of Hydropower Projects (Engineering Guidelines).\7\ D2SI
staff has also
[[Page 45033]]
augmented the part 12 inspection process over the years by adding
additional inspection components (e.g., the Potential Failure Mode
Analysis, the Supporting Technical Information Document, and the Dam
Safety Surveillance and Monitoring Program and Report).
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\7\ D2SI's Engineering Guidelines are available on the
Commission's website at https://www.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/engineering-guidelines-evaluation-hydropower.
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8. In June 2002, D2SI began a licensee pilot program for conducting
a Potential Failure Mode Analysis \8\ as a component of a part 12
inspection and issued for comment a draft Chapter 14 of the Engineering
Guidelines, which would guide licensees in performing this type of dam
safety analysis. In April 2003, D2SI issued a final Chapter 14 of the
Engineering Guidelines and required a Potential Failure Mode Analysis
to be performed during all part 12 inspections. Consistent with this
requirement, licensees have conducted over a thousand Potential Failure
Mode Analyses. The Commission proposes to codify the Potential Failure
Mode Analysis as part of the scope of a part 12 inspection,
specifically during a comprehensive assessment and typically at a ten-
year interval.
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\8\ A Potential Failure Mode Analysis is a method to evaluate
the various ways a dam and its components could possibly fail.
Generally, this involves identifying possible failure scenarios and
evaluating those factors that could make the failure mode scenario
more or less likely to occur. Finally, the significance of each
potential failure mode is determined and a prioritized plan to
address the most significant potential failure modes is developed.
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9. On December 14, 2005, the upper reservoir of the Taum Sauk
Hydroelectric Project No. 2277, a pumped storage project, was
overtopped during the final pumping cycle, causing a breach of the
upper reservoir which released over 1 billion gallons of water,
resulting in personal injury and significant environmental and property
damage.\9\ Following the December 2005 failure of Taum Sauk Dam, D2SI
began requiring licensees to develop and maintain an Owner's Dam Safety
Program, with the goal of ensuring that licensees have a robust and
focused dam safety program to protect public safety, the environment,
and project facilities. In August 2012, D2SI staff required all owners
of high and significant hazard potential dams \10\ to submit an Owner's
Dam Safety Program.\11\ The Commission proposes to codify this
requirement by adding a new subpart F to the Commission's part 12
regulations.
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\9\ More information about the Taum Sauk Dam Breach Incident can
be found on the Commission's website at https://www.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/taum-sauk-pumped-storage-project-p-2277-dam.
\10\ Hazard potential is a classification based on the potential
consequences in the event of failure or misoperation of the dam,
canal, or water conveyance, and is subdivided into categories (e.g.,
Low, Significant, High). High hazard potential generally indicates
that failure or misoperation of the project feature will probably
cause loss of human life. Significant hazard potential and low
hazard potential generally indicate that failure or misoperation
will probably not cause loss of human life but may have some amount
of economic, environmental, or other consequences. Hazard
classifications are based solely on the consequences of dam failure
and do not in any way reflect the condition of the rated dams.
\11\ See Commission staff's August 15, 2012 letter to owners of
high and significant hazard potential dams, https://www.ferc.gov/sites/default/files/2020-04/letter-submit-odsp.pdf.
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10. On February 7, 2017, high flows in the Feather River basin
caused the water level in the Feather River Hydroelectric Project No.
2100 reservoir to rise at Oroville Dam and, for the first time in
project history, flow down the emergency spillway, resulting in
extensive erosion and damage to Oroville Dam's main spillway and
emergency spillway area.\12\ This event precipitated the evacuation of
nearly 188,000 residents from the town of Oroville and from other
downstream communities north of Sacramento, California. Following the
February 2017 Oroville Dam spillway incident, the Commission required
the project licensee, California Department of Water Resources (CA
DWR), to convene a team of independent, third-party consultants to
complete a forensic analysis to determine the cause of the
incident.\13\ The Oroville Independent Forensic Team Report documented
the team's findings, conclusions, and recommendations.\14\ Several of
the Oroville Independent Forensic Team's observations related to
potential areas for improvement in the Commission's dam safety program,
particularly the part 12 inspection process.
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\12\ More information about the Oroville Dam Spillway Incident
can be found on the Commission's website at https://www.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/oroville-dam-service-spillway-p-2100.
\13\ See Commission staff's letter to CA DWR regarding the
emergency repair and board of consultants for Oroville Dam spillway,
Project No. 2100 (Feb. 13, 2017), https://www.ferc.gov/sites/default/files/2020-04/Orovilledam.pdf.
\14\ Independent Forensic Team Report, Oroville Dam Spillway
Incident (Jan. 5, 2018), https://damsafety.org/sites/default/files/files/Independent%20Forensic%20Team%20Report%20Final%2001-05-18.pdf.
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11. Separately, the Commission convened a FERC After Action Panel
to review and evaluate the Commission's dam safety program in the
months following the Oroville Dam spillway incident. The D2SI
Director's mandate to the FERC After Action Panel was to: ``Review
project documents and history for Oroville Dam . . . . ;'' ``review the
performance of the FERC dam safety program at the Oroville Dam Project,
which includes both work and actions by FERC staff, and the program
requirements on the dam owner, such as the [p]art 12 process, the
[Potential Failure Mode Analyses] process, the Instrumentation and
Monitoring Program, and Owners Dam Safety Program . . . . ;'' ``make
conclusions regarding any shortcomings in the FERC dam safety program
implementation at Oroville Dam;'' and if shortcomings are identified,
recommend ``improvement or changes to the FERC dam safety program to
ensure that future incidents like Oroville can be avoided.'' \15\
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\15\ See FERC After Action Panel Assessment of Oroville Spillway
Incident Causes and Recommendations to Improve Effectiveness of the
FERC Dam Safety Program (Nov. 23, 2018), https://www.ferc.gov/sites/default/files/2020-04/reportdamsafety.pdf.
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12. The FERC After Action Panel Report documented several
shortcomings of the Commission's dam safety program with respect to its
implementation at the Oroville Dam Project, and provided several
recommendations for improvements to the part 12 inspection process that
could increase the likelihood that design and operational deficiencies
are detected in advance of a major incident.
13. In light of the Oroville Independent Forensic Team Report and
the FERC After Action Panel Report findings, the desire to codify
existing dam safety guidance, and the Commission's authority under FPA
section 10(c) to promulgate rules protecting life, health, and
property, the Commission proposes to revise its part 12 regulations as
discussed further below.\16\
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\16\ Recently, the failures of the Edenville and Sanford Dams in
Michigan have resulted in substantial hardship and economic damage.
A forensic investigation is being undertaken to understand the root
causes of those failures. This proposed rule was substantially
complete prior to the Michigan dam failures and is not intended to
address any findings or recommendations that may result from the
forensic investigation. The Commission will review the findings once
the investigation is complete.
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II. Discussion
14. In evaluating potential revisions to its part 12 regulations,
the Commission considered the findings of the Oroville Independent
Forensic Team and FERC After Action Panel; reviewed the inspection
practices of other Federal agencies responsible for ensuring the safety
of a large number of dams, including those of the Bureau of Reclamation
(Reclamation) \17\ and the US Army Corps of Engineers (Army
[[Page 45034]]
Corps); \18\ and reviewed the Federal Emergency Management Agency's
(FEMA) Federal Guidelines for Dam Safety.\19\
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\17\ Reclamation, Review/Examination Program for High and
Significant Hazard Dams (Sept. 2018), https://www.usbr.gov/recman/fac/fac01-07.pdf.
\18\ Army Corps, Safety of Dams--Policy and Procedures (Mar.
2014), https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1110-2-1156.pdf.
\19\ FEMA, Federal Guidelines for Dam Safety (Apr. 2004),
https://www.fema.gov/media-library-data/20130726-1502-20490-5785/fema-93.pdf (FEMA Dam Safety Guidelines).
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15. First, the Commission proposes to implement two tiers of part
12 inspections, in addition to staff's regular inspections. The two-
tier structure would include two types of inspections: A comprehensive
assessment and a periodic inspection. Each type of inspection would be
performed at a ten-year interval, with the periodic inspection
occurring midway between comprehensive assessments. The proposed
structure would maintain the current five-year interval between part 12
inspections (alternating between a comprehensive assessment and a
periodic inspection) and would mirror FEMA's recommendation that formal
inspections be conducted at an interval not to exceed five years.\20\
The proposed alternating two-tier structure is similar to those used by
Reclamation and Army Corps. Because the existing five-year interval
between part 12 inspections remains the same, the proposed regulations
will not increase the likelihood that undiscovered safety issues will
persist for longer periods of time between inspections. The
comprehensive assessment would require a more in-depth review than the
current part 12 inspection, would formally incorporate the existing
potential failure modes analysis (PFMA) process, and would require a
semi-quantitative risk analysis, as recommended by the Oroville
Independent Forensic Team and FERC After Action Panel. The periodic
inspection would have a narrower scope than the current part 12
inspection and focus primarily on the performance of project works
between comprehensive assessments.
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\20\ Id. at 42.
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16. Second, the Commission proposes to change the process by which
D2SI reviews and evaluates the qualifications of independent
consultants that conduct part 12 inspections. Currently, Sec. 12.34 of
the Commission's regulations require the licensee to submit to the
Director of D2SI for approval a resume describing the independent
consultant's experience.\21\ FEMA recommends that ``the inspection team
should be chosen on a site-specific basis considering the nature and
type of dam . . . [and] should comprise individuals having appropriate
specialized knowledge in structural, mechanical, electrical, hydraulic,
and embankment design; geology; concrete materials; and construction
procedures.'' \22\
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\21\ 18 CFR 12.34.
\22\ FEMA Dam Safety Guidelines at 42.
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17. The proposed process would require the licensee to submit to
the Director of D2SI an independent consultant team proposal,
comprising one or more independent consultants and additional
engineering or scientific personnel, as needed, which must demonstrate
that the members of that team possess an appropriate level of expertise
for the specific project under consideration. This proposed change
reflects the reality that, for many of the hydropower projects under
the Commission's jurisdiction, a single independent consultant will not
possess the appropriate degree and diversity of technical proficiency
necessary to evaluate all aspects of the project. The current
requirement that an independent consultant be a licensed professional
engineer with a minimum of ten years' experience in ``dam design and
construction and in the investigation of the safety of existing dams''
would remain.\23\ However, as proposed, this requirement would apply
only to the designated independent consultants, and not to other
supporting members of the independent consultant team.
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\23\ 18 CFR 12.31(a).
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18. Third, the Commission proposes to codify existing guidance
related to the Owner's Dam Safety Program. Currently, the Commission's
part 12 regulations do not explicitly require a licensee to develop an
Owner's Dam Safety Program. However, pursuant to 18 CFR
12.4(b)(2)(ii)(B), the Commission has the authority to require
licensees to submit reports or information on any condition affecting
the safety of the project. Since the initial request for an Owner's Dam
Safety Program in August 2012,\24\ approximately 250 have been
developed by licensees and submitted to the Commission. This Notice of
Proposed Rulemaking (NOPR) proposes to codify the requirement that
licensees of one or more high or significant hazard potential dams \25\
must prepare, maintain, file with the Commission, and periodically
review and update an Owner's Dam Safety Program. Licensees would be
required to designate a person responsible for overseeing day-to-day
implementation of the dam safety program.
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\24\ See supra P 9.
\25\ See supra note 10 (defining high hazard and significant
hazard potentials).
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19. The Commission also proposes to update its regulations related
to public safety at or near hydropower projects. Currently, licensees
are required to install and maintain public safety devices and to
report deaths or serious injuries at their projects.\26\ The NOPR
proposes to revise the definition of a ``project-related'' incident to
clarify that licensees are required to report those public safety
incidents that are related to the operation of hydropower projects; to
report rescues in addition to deaths and serious injuries; and to
prepare, maintain, and submit a public safety plan to D2SI, which is
the current practice required by existing D2SI guidance.
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\26\ See 18 CFR 12.10(b) (death or serious injury reporting) and
12.42 (warning and safety devices).
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20. Finally, the Commission plans to update the Engineering
Guidelines by adding new Chapters 15 through 18. Concurrently with the
issuance of this NOPR, the Commission will solicit public review and
comment on these guidelines, which will be issued in draft format in
four separate advisory dockets accessible on the Commission's eLibrary
website. Chapter 15, available for review and comment in Docket No.
AD20-20-000, will provide licensee guidance for developing and
maintaining a Supporting Technical Information Document.\27\ Chapter
16, available for review and comment in Docket No. AD20-21-000, will
provide licensee guidance on the scope of the part 12D independent
consultant inspection program. Chapter 17, available for review and
comment in Docket No. AD20-22-000, will provide licensee guidance for
conducting a Potential Failure Mode Analysis. Chapter 18, available for
review and comment in Docket No. AD20-23-000, will provide licensee
guidance for conducting a Level 2 Risk Analysis. Comments on draft
Chapters 15 through 18 of the Engineering Guidelines should be filed in
the corresponding docket numbers listed above.
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\27\ As explained in draft Chapter 15, the Supporting Technical
Information Document is a ``living'' document that serves as a
compendium of existing project information, including information
about a project's design, construction history, operating
procedures, and engineering analyses.
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A. Review, Inspection, and Assessment by Independent Consultants
21. In response to the findings and recommendations in the Oroville
Independent Forensic Team Report and FERC After Action Panel Report,
the Commission is proposing to revise its regulations under 18 CFR part
12,
[[Page 45035]]
subpart D, to enhance the program for inspections by independent
consultants. The proposed regulations, if enacted, would replace the
existing subpart D in its entirety. Due to the proposed implementation
of two tiers of part 12 inspections (periodic inspections and
comprehensive assessments), subpart D would include Sec. Sec. 12.30
through 12.41, which results in changes to the numbering of subpart E
(existing Sec. 12.40 becomes Sec. 12.50).
1. Section 12.30--Applicability
22. Section 12.30 establishes the applicability of subpart D's
independent consultant inspection requirement and identifies three
conditions that result in a project being subject to its provisions. As
Sec. 12.30 is currently written, subpart D applies to any project
development that has a dam (1) greater than a specified height; (2)
with an impoundment exceeding a specific gross storage capacity; or (3)
that has a high hazard potential and is determined by the Regional
Engineer to require inspection by an independent consultant. Although
the subpart D regulations could be interpreted as only applying to
dams, this subpart has in practice also been applied to those portions
of canals and penstocks judged to have a high hazard potential.
23. The proposed revisions to Sec. 12.30 are intended to clarify
that the provisions of subpart D may apply to projects that do not have
a dam. The proposed revisions maintain the existing height and storage
thresholds but clarify that they are applicable only to dams. The
revisions also clarify that the high hazard potential consideration is
applicable to all project features; the project development would be
subject to subpart D if any portion of a project feature has a high
hazard potential. Additionally, subpart D would apply to a project
development if the Regional Engineer or other Commission representative
determines that an inspection is required for reasons not listed. The
proposed revisions to Sec. 12.30 are consistent with existing D2SI
practice.
2. Section 12.31--Definitions
24. Section 12.31 defines independent consultant, high hazard
potential, height above streambed, and gross storage capacity for the
purposes of the provisions of subpart D. Section 12.31 also provides
the D2SI Director the authority to grant a waiver from the ten-year
experience requirement in the definition of independent consultant.
25. The proposed revisions to Sec. 12.31 update the existing
definitions of an independent consultant and hazard potential, and
provide new definitions for independent consultant team, periodic
inspection, and comprehensive assessment.
26. The existing definition of an independent consultant is a
licensed professional engineer, with at least ten years of experience
and expertise related to dams, and is not, and has not been within two
years, an employee of the licensee or its affiliates or an agent acting
on behalf of the licensee. The proposed definition maintains the
licensure and experience requirements. But, rather than one requirement
regarding the professional relationship between the independent
consultant and licensee, the proposed definition divides the
requirement into three separate requirements. First, the independent
consultation is not an employee of the licensee or its affiliates.
Second, the independent consultant has not been an employee of the
licensee or its affiliates within two years prior to performing the
inspection under this subpart. The third restriction is that the
independent consultant has not been an agent acting on behalf of the
licensee or its affiliates before performing services under this part,
for a manner and time period defined in the Engineering Guidelines. The
guidelines provide examples of the type of information Commission staff
will consider when making this determination. The circumstances of each
case will differ and require evaluation by Commission staff; therefore,
specific thresholds for scope or duration of services are not
established in the proposed definition. The Commission intends to apply
this restriction narrowly, with the primary goal of ensuring that
independent consultants are not responsible for reviewing work products
to which they contributed substantially.
27. The Commission proposes to adopt a definition of an independent
consultant team as comprising one or more independent consultants and
additional engineering and scientific personnel, as needed.
28. The Commission proposes to require that collectively the
independent consultant team has expertise commensurate with the scale,
complexity, and relevant technical disciplines of the project and type
of review being performed (periodic inspection or comprehensive
assessment). This approach will ensure that each review is conducted by
qualified personnel such that the Commission can reasonably expect that
potential issues relating to project safety or stability can be
identified. The Commission intends to place higher expectations on the
qualifications of the personnel on an independent consultant team, and
their collective experience and expertise, for comprehensive
assessments compared to periodic inspections; projects with higher
consequences or total project risk; projects with a greater number of,
or more technically diverse or challenging, project features; and
projects with a history of unusual or adverse performance. As further
discussed below, the proposed regulations in Sec. 12.34 also require
that the licensee obtain approval of the independent consultant team
from the Director of D2SI. Currently, Sec. 12.34 only requires that
resumes be submitted for any independent consultants.
29. The existing definition of hazard potential, which refers to an
outdated source, is updated to ensure that it is consistent with FEMA's
Hazard Potential Classification System for Dams.\28\ The proposed
definition also ensures that it is applicable to dams, canals, and
other water conveyances, or any portion thereof, and refers to the
Engineering Guidelines for specific criteria that result in a
classification of low, significant, or high hazard potential.
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\28\ See FEMA, Federal Guidelines for Dam Safety: Hazard
Potential Classification System for Dams (Apr. 2004), https://www.fema.gov/media-library-data/20130726-1516-20490-7951/fema-333.pdf (FEMA Hazard Potential Classification System).
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30. Definitions for periodic inspection and comprehensive
assessment are proposed for inclusion in Sec. 12.31. The definitions
of ``height above streambed'' and ``gross storage capacity'' would
remain unchanged.
3. Section 12.32--General Inspection Requirement
31. Existing Sec. 12.32 establishes the requirement for periodic
inspection, by an independent consultant, of the project works of each
development \29\ subject to the provisions of subpart D.
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\29\ Development means that part of a project comprising an
impoundment and its associated dams, forebays, water conveyance
facilities, power plants, and other appurtenant facilities. A
project may comprise one or more developments. 18 CFR 12.3(b)(7).
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32. The proposed revisions to Sec. 12.32 incorporate the terms
``periodic inspection'' and ``comprehensive assessment'' and require
that a report be filed following each type of inspection. There are no
substantive changes to the general requirement that an independent
consultant's inspection be performed. The general requirement to file a
report following an inspection would be relocated from existing Sec.
12.37 to proposed Sec. 12.32.
[[Page 45036]]
4. Section 12.33--Exemption
33. Existing Sec. 12.33 grants the Director of D2SI the authority
to exempt projects from the provisions of subpart D for good cause and
provides an example of what may constitute good cause. At the Director
of D2SI's discretion, the exemption may be granted in perpetuity or may
require periodic reevaluation of the exemption justification (e.g., by
reviewing and confirming that the project has a low hazard potential).
The Director of D2SI's authority to exempt projects from subpart D is
retained in proposed Sec. 12.33(a).
34. The proposed revisions to Sec. 12.33(b) update the example of
good cause to include canals and other water conveyances and refer to
the Engineering Guidelines for what constitutes a low hazard potential.
35. Proposed Sec. 12.33(c) rescinds any exemption from subpart D
that was issued prior to the effective date of this proposed rule.
Existing subpart D exemptions have been granted over several decades
and, as the state of the practice of dam safety has evolved, have not
been reconsidered consistently. Accordingly, an entity desiring an
exemption will be required to reapply for one to ensure that any
justification for a subpart D exemption is reviewed based on the
current state of the practice, considering potential failure modes,
consequences, and total project risk.
5. Section 12.34--Approval of Independent Consultant Team
36. Prior to performing an inspection, existing Sec. 12.34
requires a licensee to submit to the Director of the Office of Energy
Projects, for approval, a detailed resume for an independent
consultant. The Commission proposes several revisions to Sec. 12.34 to
address concerns raised in the Oroville Independent Forensic Team
report, the FERC After Action Panel report, and issues related to
implementation of the existing rule over the past several years.\30\
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\30\ In particular, the improvements intended by the proposed
changes to the independent consultant team approval process include:
Broadening the composition of independent consultant team members to
include representation from varied technical disciplines; ensuring
thorough review of project features by qualified individuals with
the appropriate technical disciplines; and performing comprehensive
reviews of the original project design, construction, and subsequent
performance.
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37. Proposed Sec. 12.34(a) requires that the licensee obtain
written approval of the independent consultant team, from the Director
of D2SI instead of the Director of the Office of Energy Projects, prior
to performing a periodic inspection or comprehensive assessment. While
in practice D2SI has granted approval of independent consultants prior
to inspections, the regulation as currently written does not stipulate
that D2SI approval must be obtained.
38. Proposed Sec. 12.34(b), which requires that the licensee
submit a detailed independent consultant team proposal to the Director
of D2SI at least 180 days prior to performing a periodic inspection or
comprehensive assessment, includes two major changes. First, the
existing regulations require the detailed resume to be submitted 60
days in advance. The proposed increase in the time period from 60 days
to 180 days does not represent a change in practice. D2SI staff
routinely issue reminder letters to licensees approximately 18 months
in advance of any inspection required under subpart D, and for several
years have requested that independent consultants' resumes be submitted
six months in advance to ensure that all parties are aware of their
roles and responsibilities, and have sufficient time to prepare for the
inspection. The proposed regulation codifies D2SI's current practice.
39. Second, existing Sec. 12.34 requires that resumes be submitted
only for any independent consultant, to demonstrate that they meet the
requirements provided in Sec. 12.31. Proposed Sec. 12.34(b) requires
that the licensee submit documentation of the experience and
qualifications for all members of the independent consultant team,
including one or more independent consultants and additional
contributing members, as needed. The regulation includes separate
paragraphs that apply depending on whether the independent consultant
team comprises one or multiple persons. This change will allow
Commission staff to evaluate the breadth and depth of the team's
experience and ensure that it is commensurate with the scale,
complexity, and technical disciplines of the project and type of review
being performed. The Commission intends for a comprehensive assessment
to require a higher level of experience and expertise than a periodic
inspection, due to the broader scope of the comprehensive assessment.
40. Proposed Sec. 12.34(c) grants the Director of D2SI the
authority to disapprove of an independent consultant team member,
regardless of demonstrated experience and qualifications, for good
cause, such as having a report rejected by the Commission within the
preceding five years. This provision will allow the Commission to
ensure that independent consultants' inspections are performed by
qualified parties.
6. Section 12.35--Periodic Inspection
41. Existing Sec. 12.35 establishes the scope of the independent
consultant's inspection. The Commission proposes to replace Sec. 12.35
in its entirety such that it establishes the scope of a periodic
inspection, the less intensive of the two proposed tiers of part 12
inspections.
42. Proposed Sec. 12.35 establishes the scope of a periodic
inspection, which includes review of prior reports, a physical field
inspection, review of the surveillance and monitoring plan and data,
and review of dam and public safety programs. A periodic inspection has
a reduced scope compared to the existing independent consultant's
inspection.
7. Section 12.36--Report on Periodic Inspection
43. Existing Sec. 12.36 is related to emergency corrective
measures. We propose to combine existing Sec. Sec. 12.36 and 12.39
under a single ``corrective measures'' heading in Sec. 12.41, as
discussed subsequently in this NOPR.
44. Proposed Sec. 12.36 establishes the requirements for the
periodic inspection report and is intended to serve a purpose similar
to existing Sec. 12.37 (report of the independent consultant) with
several notable changes. Existing Sec. 12.37(b) includes provisions
specific to initial reports filed under subpart D, which currently
requires the initial report to include general project information
(project descriptions, maps, design summary information, geologic
information, etc.) and allows licensees to incorporate by reference
existing information and analyses contained in previously-prepared
independent consultant reports (existing Sec. 12.37(b)(2)). The
Commission proposes to eliminate the differentiation between initial
and subsequent reports and to require every periodic inspection report
to meet the same standard, without relying on the practice of
incorporating by reference information or analyses contained in earlier
reports.
45. Proposed Sec. 12.36(b) provides a list of items that require
specific evaluation in the periodic inspection report. These items
pertain to the surveillance, monitoring, and performance of the
project, with a focus on whether any potential failure modes, whether
previously identified or not, are active, developing, or warrant
further evaluation at the time of the periodic inspection.
46. The Commission proposes to eliminate the provisions that allow
[[Page 45037]]
independent consultants to incorporate the previous independent
consultant's report by reference and document only that information
that has changed since the previous report. Proposed Sec. 12.36(c)
provides a list of items which require a status update and evaluation
of any changes since the previous inspection.
47. Existing provisions in Sec. Sec. 12.37(c)(4) through (8) are
retained as proposed Sec. Sec. 12.36(d) through (h) with minor changes
to ensure consistency with other proposed revisions. Section 12.36(i)
is added to refer to the Engineering Guidelines, which contain
additional guidance regarding the format and contents of the
information discussed above.
8. Section 12.37--Comprehensive Assessment
48. Existing Sec. 12.37 establishes requirements for the report of
the independent consultant. As discussed elsewhere in this NOPR, the
proposed revisions to Sec. Sec. 12.36 and 12.38 incorporate this
information for reports on periodic inspections and comprehensive
assessments, respectively.
49. Proposed Sec. 12.37 establishes the scope of a comprehensive
assessment, the more intensive of the two proposed tiers of part 12
inspection. As many components of the comprehensive assessment are
identical to or build upon the periodic inspection, several paragraphs
of the proposed regulations reference their corresponding paragraphs in
Sec. 12.35. Below, we discuss the aspects of a comprehensive
assessment that are not required for a periodic inspection.
50. In addition to those elements required for a periodic
inspection set forth in proposed Sec. 12.35, a comprehensive
assessment includes review of prior reports and analyses of record,
review of the supporting technical information document, performance of
a potential failure modes analysis, and performance of a risk analysis.
A comprehensive assessment has an expanded scope compared to the
existing independent consultant's inspection. Proposed Sec.
12.37(a)(2) requires the independent consultant team to perform a more
detailed review of existing documentation, including as-built drawings,
monitoring data, and analyses of record, than required by the current
independent consultant's inspection.
51. Proposed Sec. 12.37(f) requires a comprehensive assessment to
include a potential failure mode analysis, which is already standard
practice for current part 12 inspections. D2SI has developed draft
Chapter 17 of the Engineering Guidelines, which describes how to
conduct a potential failure mode analysis. As discussed above, the
Commission is soliciting public comments on draft Chapter 17 in Docket
No. AD20-22-00.\31\
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\31\ See supra P 20.
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52. Proposed Sec. 12.37(g) incorporates a semi-quantitative risk
analysis as part of the scope of a comprehensive assessment. Other
Federal agencies, including Reclamation, Army Corps, and the Tennessee
Valley Authority, have incorporated semi-quantitative risk analyses
into their systematic comprehensive dam safety reviews. FEMA also
provides recommendations and guidance for the performance of semi-
quantitative risk analysis in their guidelines.\32\ D2SI has developed
draft Chapter 18 of the Engineering Guidelines, which describes the
process of, and procedures for performing, a semi-quantitative risk
analysis. As discussed above, the Commission is soliciting public
comments on draft Chapter 18 in Docket No. AD20-23-00.\33\
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\32\ FEMA, Federal Guidelines for Dam Safety Risk Management
(Jan. 2015), http://www.fema.gov/media-library-data/1423661058965-58dfcecc8d8d18b7e9b2a79ce1e83c96/FEMAP-1025.pdf.
\33\ See supra P 20.
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53. Proposed Sec. 12.37(g) grants the D2SI Regional Engineer the
authority to waive the requirement to complete a risk analysis during a
comprehensive assessment. This allows the Commission to focus efforts
on those projects that present greater risk to life, health, and
property, and provides flexibility for D2SI staff to gradually phase in
the risk analysis component of a comprehensive assessment, allowing
sufficient time for D2SI staff to develop and deliver training on the
proposed risk analysis procedures to D2SI staff, licensee staff, and
consultants.
9. Section 12.38--Report on Comprehensive Assessment
54. Existing Sec. 12.38 is related to the timeline for submitting
reports on an independent consultant's inspection. This information
would be relocated to proposed Sec. 12.40, discussed subsequently in
this NOPR.
55. Proposed Sec. 12.38 establishes the requirements for the
report on a comprehensive assessment. As with the corresponding section
regarding a report on a periodic inspection, the Commission proposes to
eliminate the difference between initial and subsequent reports and to
require every comprehensive assessment report to meet the same
standard.
56. Proposed Sec. 12.38(b) references Sec. 12.36(b) and provides
a list of items that require specific evaluation in the comprehensive
assessment report. In addition to those elements required for a
periodic inspection, a comprehensive assessment report must include an
evaluation of spillway adequacy; the potential for internal erosion
and/or piping of embankments, foundations, and abutments; structural
integrity and stability of all structures under credible loading
conditions; any other analyses of record pertaining to geology,
seismicity, hydrology, hydraulics, or project safety; and the
supporting technical information document, potential failure modes
analysis, and risk analysis. An evaluation of an analysis of record
must include an evaluation of the accuracy, relevance, and consistency
with the current state of the practice of dam engineering, and the
comprehensive assessment report must include clear documentation of the
independent consultant team's rationale. If the independent consultant
team is unable to review any analysis of record or disagrees with the
analysis of record in any way, the independent consultant must
recommend new analyses.
57. The Commission also proposes to eliminate the provisions that
allow independent consultants to incorporate the previous independent
consultant's report by reference and document only that information
that has changed since the previous report. By referencing the periodic
inspection report requirements (Sec. 12.36(c)) (i.e., report on
periodic inspection), proposed Sec. 12.38(c) requires the independent
consultant to provide, across seven categories, a status update and
evaluation of any changes since the previous inspection, which are the
same required for a periodic inspection.
58. The existing provisions in Sec. Sec. 12.37(c)(4) through (8)
are retained as proposed Sec. Sec. 12.38(d) through (h) with minor
changes to ensure consistency with other proposed revisions. Proposed
Sec. 12.38(j) is added to refer to the Engineering Guidelines, which
contain additional details regarding the format and contents of the
information discussed above.
10. Section 12.39--Evaluation of Spillway Adequacy
59. Existing Sec. 12.39 relates to taking corrective measures
after the report; this information is relocated to Sec. 12.41,
discussed subsequently in this NOPR. Currently, the requirement to
evaluate spillway adequacy is a required component of the part 12
inspection and is found in Sec. 12.35(b) of our regulations. However,
providing this information in
[[Page 45038]]
a standalone section will highlight the importance of evaluating
spillway adequacy. Accordingly, we propose to relocate this requirement
to proposed Sec. 12.39.
60. Proposed Sec. 12.39 expands the existing requirements for
evaluating spillway adequacy. These additional requirements are
intended to address scenarios similar to the 2017 Oroville Dam spillway
incident, and would require the independent consultant to evaluate the
potential for misoperation of, failure to operate, blockage of, or
debilitating damage to a spillway, and the resulting effects on the
maximum reservoir level and the potential for overtopping.
11. Section 12.40--Time for Inspections and Reports
61. The timelines for performing independent consultant inspections
and submitting inspection reports, currently found in existing Sec.
12.38, would be relocated to proposed Sec. 12.40. The existing rules
establishes a five-year cycle between inspections and includes
provisions for initial inspections of existing licensed projects,
projects licensed but not yet constructed, and all other projects;
includes a separate set of provisions related to projects inspected by
an independent consultant prior to March 1, 1981; and authorizes the
D2SI Regional Engineer to grant extensions of time to file an
independent consultant's inspection report.
62. Proposed Sec. 12.40 revises the timeline for submitting
reports on inspections by independent consultants. While the current
five-year interval between inspections and reports is maintained, the
inspections will alternate between periodic inspections and
comprehensive assessments; thus, there is a ten-year interval between
any pair of consecutive comprehensive assessments or periodic
inspections.
63. Proposed Sec. 12.40(a) consolidates the timing of inspections
and reports for projects previously inspected by an independent
consultant. Section 12.40(a)(1) maintains the five-year cycle for an
independent consultant's inspection of each project development.
Section 12.40(a)(2) grants the D2SI Regional Engineer the authority to
require that the initial report due to be filed after January 1, 2021,
be either a comprehensive assessment or periodic inspection, enabling
D2SI to balance the number of comprehensive assessments due each year
over the ten-year cycle. Section 12.40(a)(3) requires that the first
comprehensive assessment be completed, and the report on it filed, by
December 31, 2034.
64. Proposed Sec. 12.40(b) retains and updates the terminology
related to existing provisions for existing licensed projects
previously inspected, projects licensed but not yet constructed, and
other projects.
65. Proposed Sec. 12.40(c) establishes the ten-year interval
between comprehensive assessments and requires that a periodic
inspection be performed within five years following a comprehensive
assessment.
66. Proposed Sec. Sec. 12.40(d) and 12.40(e) authorize the D2SI
Regional Engineer to extend the time to file an independent
consultant's report, for good cause shown, and may require that any
inspection scheduled to be performed be a periodic inspection or
comprehensive assessment. For example, where a project is scheduled for
a periodic inspection but a dam safety incident, extreme loading
condition (e.g., unprecedented flood, large earthquake, etc.), or other
significant change in condition has occurred since the previous
comprehensive assessment, the D2SI Regional Engineer may require that
the project undergo a comprehensive assessment rather than a periodic
inspection. Alternatively, for projects that have no life safety
consequences and a low total project risk, the D2SI Regional Engineer
may allow comprehensive assessments to be performed at an interval
greater than every ten years.
12. Section 12.41--Corrective Measures
67. The procedures for addressing items identified during a part 12
inspection that require corrective measures are currently set forth in
existing Sec. 12.39. In this proposed rule, these procedures would be
relocated to proposed Sec. 12.41. The existing regulations require
licensees to: Submit to the D2SI Regional Engineer a plan and schedule
within 60 days of filing an independent consultant's report with the
Commission, and complete all corrective measures in accordance with the
plan and schedule approved or modified by the D2SI Regional Engineer.
Under the existing regulations, the D2SI Regional Engineer may extend
the time for filing the plan and schedule. This NOPR does not propose
to modify or eliminate these requirements.
68. Proposed Sec. 12.41 incorporates the requirements of existing
Sec. 12.36 (emergency corrective measures) and Sec. 12.39 (post-
inspection corrective measures) into a single section titled
``corrective measures.'' The proposed revisions in Sec. 12.41(a)(1)(i)
clarify that the licensee's plan and schedule must address the
recommendations of the independent consultant and include investigation
as an option for the licensee to implement. Proposed Sec. 12.41(b)(2)
would be added to ensure that emergency corrective measures are
documented in the corrective plan and schedule required by Sec.
12.41(a)(1).
B. Owner's Dam Safety Program
69. The Commission began developing the Owner's Dam Safety Program
guidance following the December 2005 failure of Taum Sauk Dam. The lack
of a strong dam safety culture in the licensee's organization was a
major contributing factor to that incident, as well as to several dam
safety incidents that preceded and followed it. In August 2012, the
Director of D2SI issued letters to all owners of high or significant
hazard potential dams requiring them to submit an Owner's Dam Safety
Program.\34\ Additional information and guidance on the development of
an Owner's Dam Safety Program development has been available on the
Commission's website since this time. Proposed subpart F consolidates
and codifies that guidance, as discussed further below.
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\34\ Letter to All Licensees and Exemptees of High and
Significant Hazard Potential Dams Requiring Submittal of an Owner's
Dam Safety Program, August 2012, https://www.ferc.gov/sites/default/files/2020-04/letter-submit-odsp.pdf.
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1. Section 12.60--Applicability
70. Proposed Sec. 12.60 specifies that an Owner's Dam Safety
Program must be submitted by any licensee that has a dam or other
project feature with a high or significant hazard potential. This does
not represent a change from existing practice.
2. Section 12.61--Definitions
71. Proposed Sec. 12.61 defines the terms ``Chief Dam Safety
Engineer'' and ``Chief Dam Safety Coordinator,'' as used in subpart F.
The Chief Dam Safety Engineer or Chief Dam Safety Coordinator is
defined as the person who oversees the implementation of the Owner's
Dam Safety Program and has primary responsibility for ensuring the
safety of the licensee's dams and other project features. The only
difference between the definitions is that a Chief Dam Safety Engineer
must be a licensed professional engineer.
3. Section 12.62--General Requirements
72. Proposed Sec. 12.62 establishes three general requirements for
an Owner's Dam Safety Program. Section 12.62(a) requires an Owner's Dam
Safety Program to designate either a Chief Dam Safety Engineer or a
Chief Dam Safety Coordinator. Any Owner's Dam Safety
[[Page 45039]]
Program that applies to one or more dams or other project features with
a high hazard potential must designate a Chief Dam Safety Engineer.
Section 12.62(b) requires the Owner's Dam Safety Program to be signed
by the owner and the Chief Dam Safety Engineer or Chief Dam Safety
Coordinator, as applicable. Section 12.62(c) requires the Owner's Dam
Safety Program to be reviewed and updated on a periodic basis. Section
12.62(d) permits the Owner to designate outside parties, such as
consultants, to serve as Chief Dam Safety Engineer or Chief Dam Safety
Coordinator, though the owner retains ultimate responsibility for the
safety and day-to-day implementation of their projects.
4. Section 12.63--Contents of Owner's Dam Safety Program
73. Proposed Sec. 12.63 establishes the minimum contents of an
Owner's Dam Safety Program. Sections 12.63(a)-(f) each correspond to a
topic area that should be addressed in an Owner's Dam Safety Program
document and reflected in the document's table of contents, as provided
in current D2SI guidance available on the Commission's website.\35\
Under Sec. 12.63(g), the Owner's Dam Safety Program should also
include any additional information that may be prescribed by the
Engineering Guidelines, a draft chapter of which is in development and
will be provided at a later date for public review and comment.
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\35\ FERC, Outline for Owner's Dam Safety Program--Table of
Contents, https://www.ferc.gov/sites/default/files/2020-04/outline-with-discussion.pdf.
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5. Section 12.64--Annual Review and Update
74. Proposed Sec. 12.64 describes the requirements for reviewing
and updating an Owner's Dam Safety Program. Section 12.64 specifies
that any Owner's Dam Safety Program must be reviewed by the licensee's
dam safety staff and discussed with senior management on an annual
basis, and that any findings, analysis, corrective measures, or
revisions be submitted to the D2SI Regional Engineer.
6. Section 12.65--Independent External Audit and Peer Review
75. Section 12.65 describes the requirements of independent
external audits and peer reviews, which must be completed at least once
every five years for any Owner's Dam Safety Program that applies to one
or more dams or other project features having a high hazard potential
classification. The qualifications of the review team must be submitted
to the D2SI Regional Engineer in advance, and the Regional Engineer's
acceptance must be obtained prior to performing the audit or peer
review. The Commission will review the qualifications to ensure that
the review team has sufficient expertise and a defined plan to review
the Owner's Dam Safety Program. The findings of the external audit or
peer review team must be documented in a report to be reviewed by
licensee staff, including senior management, and submitted to the
Regional Engineer.
C. Public Safety and Miscellaneous Updates
76. This NOPR also proposes several changes to subparts A, B, C,
and E of 18 CFR part 12, most of which are minor in nature and
necessary to ensure consistency with the replaced subpart D and new
subpart F. The two notable proposed revisions relate to the reporting
of public safety incidents and the development of public safety plans
and their submittal to the Commission.
1. Subpart A--General Provisions
77. Subpart A sets forth general provisions and definitions that
apply to 18 CFR part 12. The proposed rule would update or add several
definitions and make other minor changes to ensure consistency with
replaced subpart D and new subpart F. Section 12.3(b)(4) provides a
list of conditions affecting the safety of project works. Two of these
conditions would be updated to ensure their definitions are consistent
as applied in current practice. In addition, ``overtopping of any dam,
abutment, canal, or water conveyance'' would be added to the list of
conditions that could affect project safety. New definitions for
``water conveyance,'' ``Engineering Guidelines,'' and ``Owner's Dam
Safety Program'' would also be added. All other revisions in subpart A
are proposed to ensure consistent terminology and to update internal
references.
78. Section 309 of the FPA authorizes the Commission ``to perform
any and all acts, and to . . . issue . . . such orders, rules, and
regulations as it may find necessary or appropriate to carry out the
provisions of the [FPA],'' and FPA section 31 gives the Commission
authority to enforce legal and regulatory requirements. Non-compliance
with dam safety directives could result in the Commission taking
actions such as issuing a cease generation order, assessing civil
penalties, or revoking the project's license pursuant to section 31 of
the FPA. Accordingly, the proposed addition of Sec. 12.4(d) makes
clear that a licensee's failure to comply with any order or directive
issued under part 12 by the Commission, a Regional Engineer, or other
authorized Commission representative may result in sanctions as noted
above.
2. Subpart B--Reports and Records
79. Subpart B sets forth requirements for reporting, verifying, and
providing records to the Commission regarding dam safety-related
matters, including public safety incidents. The Commission proposes
minor revisions to ensure consistency with other sections of the
regulations and the dam safety program as implemented. In addition, the
proposed rule would require additional reporting of public safety-
related incidents that involve deaths, serious injuries, or rescues.
80. The proposed revisions to Sec. 12.10(a)(1) express the
Commission's preference that oral reports of conditions affecting the
safety of a project or its works are made within 72 hours of discovery
of the condition. The reporting of an incident to the Commission must
not in any way inhibit an emergency response to that incident.
81. The proposed revisions to Sec. 12.10(b) would require the
reporting of rescues in addition to deaths and serious injuries, as
well as clarify what constitutes a project-related incident. For
precision and to use terminology that is generally accepted in the dam
safety community, we propose to replace the term ``project-related
accident'' with ``project-related incident.'' Currently, Sec.
12.10(b)(4) defines ``project-related,'' as ``any deaths or serious
injuries involving a dam, spillway, intake, or power line, or which
take place at or immediately above or below a dam.'' \36\ In our
experience, the final clause of the definition has been the most
problematic for licensees to apply, often leading licensees to report
as project-related those deaths or serious injuries that occur near a
dam but are wholly unrelated to the project or its operation. By
revising the definition of ``project-related,'' we intend to make clear
that an incident is project-related only if it occurs at project works,
involves changes in water levels resulting from operations of project
works, or is otherwise attributable to the project or its operation.
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\36\ 18 CFR 12.10(b)(4) (emphasis added).
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82. The proposed revisions to Sec. 12.12(b)(3) permit storage
media other than microform, which is consistent with part 125 of the
Commission's regulations. Section 12.12(d) is added to require the
licensee to provide physical and electronic records to the D2SI
[[Page 45040]]
Regional Engineer for all projects subject to subpart D, or as
requested by the D2SI Regional Engineer, for which the information is
necessary for the Commission to ensure the safety of the project works.
The existing Sec. 12.12(b)(2)(ii)(A) already grants the Regional
Engineer the authority to require that an applicant or licensee submit
such reports or information and is unchanged; this provision has
historically been applied to all projects subject to subpart D through
the requirement to develop, maintain, and submit a Supporting Technical
Information Document, which is described in the Engineering Guidelines.
Neither of these requirements represent a change in D2SI practice.
3. Subpart C--Emergency Action Plans
83. Subpart C sets forth requirements related to emergency action
plans. The Commission proposes only minor revisions to Sec. Sec.
12.20, 12.22, and 12.24 to ensure consistency with the hydropower
filing guidelines available on the Commission's website, terminology
with respect to the Engineering Guidelines, and to update cross-
references to other sections in this part.
4. Subpart E--Other Responsibilities of Applicant or Licensee
84. Subpart E sets forth other applicant and licensee
responsibilities, including the requirement to install warning and
public safety devices, and test spillway gates. The Commission proposes
to replace one section and update another to codify a function of the
dam safety program as currently implemented and to ensure the use of
consistent terminology in conjunction with the proposed replacement of
subpart D. Subpart E will be redesignated as Sec. Sec. 12.50 to 12.54
to accommodate the proposed inclusion of additional sections in subpart
D. These proposed revisions to subpart E do not represent a change in
practice.
85. The proposed revisions to Sec. 12.52 (warning and safety
devices; currently Sec. 12.42) preserve the current regulatory
requirement that licensees must install, operate, and maintain warning
and safety devices to protect the public, with a minor revision to
ensure consistency with the rest of part 12. Proposed Sec. 12.52(b)
codifies existing D2SI guidance that the Commission may require a
licensee to submit a public safety plan that documents the
installation, operation, and maintenance of public safety devices.\37\
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\37\ FERC, Guidelines for Public Safety at Hydropower Projects
(Mar. 1992), https://www.ferc.gov/sites/default/files/2020-04/public-safety.pdf.
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86. Finally, we propose to revise Sec. 12.54 (testing spillway
gates; currently Sec. 12.44) to replace the term ``periodic
inspection'' with the more generic term ``an inspection.'' This change
in terminology will ensure that Commission staff can continue to verify
the operability of spillway gates during their routine inspections, and
will prevent this section from being misconstrued as applying only to a
periodic inspection as it is proposed to be defined and described in
subpart D of this NOPR.
III. Regulatory Requirements
A. Information Collection Statement
87. The Paperwork Reduction Act \38\ requires each federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information (including reporting,
record keeping, and public disclosure requirements) directed to ten or
more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contemplated by proposed rules (including deletion,
revision, or implementation of new requirements).\39\ Upon approval of
a collection of information, OMB will assign an OMB control number and
an expiration date. Respondents subject to the filing requirements of
this proposed rule will not be penalized for failing to respond to the
collection of information unless the collection of information displays
a valid OMB control number.
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\38\ 44 U.S.C. 3501-3521.
\39\ See 5 CFR 1320.
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88. The following discussion describes and analyzes the collections
of information modified by this proposed rule.
89. The Commission solicits comments on the Commission's need for
the proposed information collection in this NOPR and in draft Chapters
15 through 18 of the Engineering Guidelines,\40\ whether the
information will have practical utility, the accuracy of the burden
estimates, ways to enhance the quality, utility, and clarity of the
information to be collected or retained, and any suggested methods for
minimizing respondents' burden, including the use of automated
information techniques. All burden estimates for all proposed
information collection activities (including those in draft Chapters 15
through 18 of the Engineering Guidelines) are discussed in this NOPR
and in the Paperwork Reduction Act supporting statement.
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\40\ Concurrently with issuance of this NOPR, the Commission is
issuing for public comment the draft chapters of the Engineering
Guidelines in Docket Nos. AD20-20-000 (Chapter 15--Supporting
Technical Information Document), AD20-21-000 (Chapter 16--Part 12D
Program), AD20-22-000 (Chapter 17--Potential Failure Mode Analysis),
and AD20-23-000 (Chapter 18--Level 2 Risk Analysis). See supra P 20.
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90. Interested persons may submit questions about the information
collection activities by contacting Ellen Brown, Office of the
Executive Director, at [email protected], or (202) 502-8663.
Please send comments concerning the collection of information and the
associated burden estimates to: Office of Information and Regulatory
Affairs, Office of Management and Budget [Attention: Federal Energy
Regulatory Commission Desk Officer]. Due to security concerns, comments
should be sent directly to www.reginfo.gov/public/do/PRAMain. Comments
submitted to OMB should be sent within 60 days of publication of this
notice in the Federal Register and refer to FERC-517 and OMB Control
No. 1902-TBD.
91. Please submit to the Commission copies of comments concerning
the collection of information and the associated burden estimates
(identified by Docket No. RM20-9-000) by either of the following
methods:
Electronic Filing through the Commission's website:
https://www.ferconline.ferc.gov/eFiling.aspx; or
Mail/Express Services: Persons unable to file
electronically may mail similar pleadings to the Federal Energy
Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand-
delivered submissions in docketed proceedings should be delivered to
Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland
20852.
92. Public Reporting Burden: In this NOPR, the Commission proposes
to establish two tiers of Independent Consultant's Safety Inspection
Reports, further develop the Owner's Dam Safety Program, and require
reporting of rescues that occur at hydroelectric projects. The NOPR, in
conjunction with the corresponding updates to the Engineering
Guidelines, would revise and add some information collection activities
in 18 CFR part 12.
93. The proposed revisions to 18 CFR part 12, subpart D
(independent consultant inspections), if adopted, would not affect the
current five-year filing cycle for Independent Consultant's Safety
Inspection Reports; however, they would modify the scope
[[Page 45041]]
of reports on an alternating cycle, such that the reports would
alternate between a periodic inspection (a reduction in scope compared
to current inspection requirement) and a comprehensive assessment (an
increase in scope compared to current inspection requirement). The
hydroelectric facilities regulated by the Commission vary greatly in
size and complexity, and there is no single representative project. To
evaluate the burden associated with the proposed revisions to
Independent Consultant's Safety Inspection Reports, Commission staff
developed separate cost estimates for ``Simple'' and ``Complex''
hydroelectric facilities, which are listed in the table below.
Commission staff recognizes that there will be projects with annualized
costs less than the ``Simple'' estimate or greater than the ``Complex''
estimate, but Commission staff believe the values presented are
appropriately representative when averaged across the total inventory
of hydroelectric projects and respondents. The assumption underlying
these burden estimates is that one-half of licensed projects can be
represented by each category.\41\
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\41\ The cost data presented in the table is the change in
annualized cost based on the proposed changes described in the NOPR.
The annualized costs are based on the total cost, in 2020 dollars,
over the typical 10-year Part 12D inspection cycle, which comprises
one Comprehensive Assessment and one Periodic Inspection, and the
associated activities. The scope of each inspection and associated
reporting requirements are defined in the proposed rules.
---------------------------------------------------------------------------
94. The proposed addition of 18 CFR part 12, subpart F (Owner's Dam
Safety Program) would codify existing requirements for the preparation
or collection of information. Those licensees who are required to
prepare an Owner's Dam Safety Program, due to the hazard potential
classification of their licensed project(s), have already done so. When
a new license is issued for a non-constructed or previously unlicensed
project, the Commission includes a license article requiring an Owner's
Dam Safety Program if warranted. There may be situations in which a
project's hazard potential classification increases from low to either
significant or high (e.g., due to new housing development within the
hypothetical inundation area). If that licensee has no other projects
classified as significant or high (i.e., does not have an Owner's Dam
Safety Program), then the licensee would be required to prepare a new
Owner's Dam Safety Program. However, this is not expected to occur
frequently or with any regularity. Thus, Commission staff estimates no
added incremental burden or cost from the proposed addition of subpart
F.
95. The proposed minor revisions to 18 CFR part 12, subpart B would
require licensees to report the rescue of any person that occurs at
hydroelectric facilities, which is in addition to existing requirements
that licensees report public safety incidents that result in the death
or serious injury of any person.
96. Table 1 itemizes the estimated annual burden \42\ and direct
cost \43\ of the proposed changes due to this NOPR. Record keeping
requirements are included in the burden and cost estimates for the
development and collection of the data and reports.
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\42\ ``Burden'' is the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the information
collection burden, refer to Title 5 Code of Federal Regulations
1320.3.
\43\ Direct costs are those costs (generally labor costs)
associated with the applicant's or licensee's staff in the
performance of the efforts related to the proposed rule change.
These do not include the costs for professional services, although
the direct costs do include the costs associated with the
applicant's or licensee's administration and execution of contracts
for professional services.
\44\ The Commission staff believes that industry is similarly
situated in terms of cost for wages and benefits. Therefore, we are
using the FERC 2020 average cost (for wages plus benefits) for one
FERC full-time equivalent (FTE) of $172,329 (or $83.00 per hour).
\45\ As defined by 18 CFR 12.1(a)(2).
\46\ As defined by 18 CFR 12.1(a)(1) and (a)(3).
\47\ Proposed revisions of 18 CFR 12.10(b)(1), 12.10(b)(2), and
12.10(b)(4) for written reports of project-related deaths, serious
injuries, or rescues at project works or involving project
operations.
\48\ Commission staff assumes the average number of respondents
who will file a 12.10(b) public safety incident report documenting a
rescue at a hydroelectric project will equal the average number of
respondents who filed a 12.10(b) public safety incident report
documenting a death or serious injury over the 10-year period from
January 1, 2009 through December 31, 2018.
\49\ Commission staff assumes the average number of 12.10(b)
public safety incident reports documenting rescues at hydroelectric
projects will equal the average number of 12.10(b) reports for
deaths and serious injuries over the 10-year period from January 1,
2009 through December 21, 2018.
\50\ Commission staff estimates no incremental change in direct
costs due to the proposed rule change as compared to the current
burden and costs.
\51\ Includes direct costs associated with the preparation and
submittal of Independent Consultant Team Proposals (proposed 18 CFR
12.34) and Reports for Periodic Inspections and Comprehensive
Assessments (proposed 18 CFR 12.36 and 12.38).
\52\ Approximately 750 project developments licensed by the
Commission are subject to the reporting requirements. This table
defines a single response as the consolidated filings associated
with the typical ten-year cycle for Independent Consultant's Safety
Inspections, which would take effect following implementation of a
final rule. A single response would include one each of the reports
and other filings required under the scope of a Periodic Inspection
and a Comprehensive Assessment. Thus, the total number of responses
over a ten-year period will be the number of projects (750), divided
equally between the ``Simple'' and ``Complex'' categories of
hydroelectric facilities.
\53\ As previously noted, this table defines a single response
as the consolidated filings associated with the typical ten-year
cycle for Independent Consultant's Safety Inspections. Therefore,
the number of annual responses is averaged over the ten-year period,
or 0.1 responses on average per year.
\54\ See supra note 51.
\55\ Burden costs include hourly wages estimated based on
complexity of project, scope of inspection, experience and number of
assigned staff, and were compared to industry estimates provided by
fewer than nine industry representatives who were contacted by
Commission staff.
\56\ Proposed 18 CFR 12.33(a) includes a provision for licensees
to submit a written request to be excluded from the requirements of
18 CFR Subpart D in extraordinary circumstances.
\57\ Includes direct costs associated with the preparation and
submittal of Owner's Dam Safety Program Document (proposed 18 CFR
12.60 and 12.63), Statements of Qualifications for External Audit or
Peer Review (proposed 18 CFR 12.65(b)), and Reports of Audits or
Peer Review (proposed 18 CFR 12.65(c)).
Table 1--Annual Burden and Direct Cost Changes Proposed by the NOPR in Docket No. RM20-9-000 \44\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
number of Average annual Total number of Total annual burden hours
Type of respondent Type of response Number of annual burden hours and annual and cost (col. E x col.
respondents responses per cost per response responses (col. F)
respondent C x col. D)
A B C D E F G
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant \45\ or Licensee \46\. Reports of Project- \48\ 65 \49\ 2.14 2 hrs.; $166....... 139 278 hrs.; $23,074.
Related Deaths,
Serious Injuries,
or Rescues \47\.
Licensee of Simple Hydro Ind. Cons. Team \52\ 375 \53\ 0.1 0 hrs.; $0......... 37.5 0 hrs.; $0.
Facility \50\. Proposals and
Reports on PIs and
CAs \51\.
Licensee of Complex Hydro Ind. Cons. Team 375 0.1 0.6 hrs.; \55\ 37.5 22.5 hrs.; $1,867.50.
Facility. Proposals and $49.80.
Reports on PIs and
CAs \54\.
[[Page 45042]]
Licensee........................ Exemption Requests 10 1 2 hrs.; $166....... 10 20 hrs.; $1,660
\56\.
--------------------------------------------------------------------------------------------------
Licensee of Dam or Other Project Owner's Dam Safety Staff estimates no incremental change in direct costs due to the proposed rule change as compared
Feature with a High or Program Submittals to the current burden and costs.
Significant Hazard Potential. \57\.
--------------------------------------------------------------------------------------------------
Totals...................... ................... 825 .............. ................... 224 320.5 hrs.; $26,601.50
--------------------------------------------------------------------------------------------------------------------------------------------------------
97. Table 2 itemizes the estimated annual burden and annual
contracting costs for professional services \58\ of the information
collections that would be affected by this NOPR. Record keeping
requirements are included in the burden and cost estimates for the
development and collection of the data and reports.
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\58\ Contracting costs include costs for professional services,
including labor, travel and subsistence, and other indirect costs
incurred by the contractor or consultant. Contracting costs do not
include direct costs incurred by the applicant or licensee in the
administration or execution of the contract for professional
services; those are included in the previous table, as applicable.
Table 2--Annual Burden and Contracting Cost for Professional Services Changes Proposed by the NOPR in Docket No. RM20-9-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
number of Average annual Total number of Total annual burden hours
Type of respondent Type of response Number of annual burden hours and annual and cost (col. E x col.
respondents responses per cost per response responses (col. F)
respondent C x col. D)
A B C D E F G
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant \59\ or Licensee \60\. Reports of Project- There are no anticipated costs for contracted professional services affected by this proposed
Related Deaths, rule change.
Serious Injuries,
or Rescues \61\.
--------------------------------------------------------------------------------------------------
Licensee of Simple Hydro Ind. Cons. Team \63\ 375 \64\ 0.1 12 hrs.; \65\ 37.5 450 hrs.; $94,665.
Facility. Proposals and $2,524.40.
Reports on PIs and
CAs \62\.
Licensee of Complex Hydro Ind. Cons. Team 375 0.1 32 hrs.; \67\ 37.5 1,200 hrs.; $261,746.25.
Facility. Proposals and $6,979.90.
Reports on PIs and
CAs \66\.
--------------------------------------------------------------------------------------------------
Licensee........................ Exemption Requests There are no anticipated costs for contracted professional services affected by this proposed
\68\. rule change.
--------------------------------------------------------------------------------------------------
Licensee of Dam or Other Project Owner's Dam Safety Commission staff estimates no incremental change in costs for contracted professional services
Feature with a High or Program Submittals due to the proposed rule change as compared to the current burden and costs.
Significant Hazard Potential. \69\.
--------------------------------------------------------------------------------------------------
Totals...................... ................... 750 .............. ................... 75 1,650 hrs.; $356,411.25
--------------------------------------------------------------------------------------------------------------------------------------------------------
98. Table 3 itemizes the estimated annual burden and total cost
(direct costs [from Table 1] and costs for contracted professional
services [from Table 2]), of the proposed changes due to this NOPR.
Record keeping requirements are included in the burden and cost
estimates for the development and collection of the data and reports.
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\59\ As defined by 18 CFR 12.1(a)(2).
\60\ As defined by 18 CFR 12.1(a)(1) and (a)(3).
\61\ Proposed revisions of 18 CFR 12.10(b)(1), (b)(2), and
(b)(4) for written reports of project-related deaths, serious
injuries, or rescues at project works or involving project
operations.
\62\ Includes contracting costs for professional services
associated with the preparation and submittal of Independent
Consultant Team Proposals (proposed 18 CFR 12.34) and Reports for
Periodic Inspections and Comprehensive Assessments (proposed 18 CFR
12.36 and 12.38).
\63\ Approximately 750 project developments licensed by the
Commission are subject to the reporting requirements. This table
defines a single response as the consolidated filings associated
with the typical ten-year cycle for Independent Consultant's Safety
Inspections, which would take effect following implementation of a
final rule. A single response would include one each of the reports
and other filings required under the scope of a Periodic Inspection
and a Comprehensive Assessment. Thus, the total number of responses
over a ten-year period will be the number of projects (750), divided
equally between the ``Simple'' and ``Complex'' categories of
hydroelectric facilities.
\64\ As previously noted, this table defines a single response
as the consolidated filings associated with the typical ten-year
cycle for Independent Consultant's Safety Inspections. Therefore,
the number of annual responses is averaged over the ten-year period,
or 0.1 responses on average per year.
\65\ Burden costs include hourly wages estimated based on
complexity of project, scope of inspection, experience and number of
assigned staff, and were compared to industry estimates provided by
fewer than nine industry representatives.
\66\ See supra note 62.
\67\ See supra note 65.
\68\ Proposed 18 CFR 12.33(a) includes a provision for licensees
to request a written request to be excluded from the requirements of
18 CFR Subpart D in extraordinary circumstances.
\69\ Includes costs for contracted professional services
associated with the preparation and submittal of Owner's Dam Safety
Program Document (proposed 18 CFR 12.60 and 12.63), Statements of
Qualifications for External Audit or Peer Review (proposed 18 CFR
12.65(b)), and Reports of Audits or Peer Review (proposed 18 CFR
12.65(c)).
[[Page 45043]]
Table 3--Total Annual Burden and Cost ChangesProposed by the NOPR in Docket No. RM20-9-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
number of Average annual Total number of Total annual burden hours
Type of respondent Type of response Number of annual burden hours and annual and cost (col. E x col.
respondents responses per cost per response responses (col. F)
respondent C x col. D)
A B C D E F G
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant \70\ or Licensee \71\. Reports of Project- 65 2.14 2 hrs.; $166....... 139 278 hrs.; $23,074.
Related Deaths,
Serious Injuries,
or Rescues \72\.
Licensee of Simple Hydro Ind. Cons. Team 375 0.1 12 hrs.; $2,524.40. 37.5 450 hrs.; $94,665.
Facility \73\. Proposals and
Reports on PIs and
CAs \74\.
Licensee of Complex Hydro Ind. Cons. Team 375 0.1 32.6 hrs.; 37.5 1,222.5 hrs.; $263,613.75.
Facility \75\. Proposals and $7,029.70.
Reports on PIs and
CAs.
Licensee........................ Exemption Requests 10 1 2 hrs.; $166....... 10 20 hrs.; $1,660.
\76\.
--------------------------------------------------------------------------------------------------
Licensee of Dam or Other Project Owner's Dam Safety Staff estimates no incremental change in direct costs due to the proposed rule change as compared
Feature with a High or Program Submittals to the current burden and costs.
Significant Hazard Potential. \77\.
--------------------------------------------------------------------------------------------------
Total for Direct Costs and ................... 825 .............. ................... 224 1,970.5 hrs.;
Contracting Costs due to $383,012.75.
NOPR in RM20-9-000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
99. Title: FERC-517, Safety of Water Power Projects and Project
Works.
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\70\ As defined by 18 CFR 12.1(a)(2).
\71\ As defined by 18 CFR 12.1(a)(1) and (a)(3).
\72\ Proposed revisions of 18 CFR 12.10(b)(1), (b)(2), and
(b)(4) for written reports of project-related deaths, serious
injuries, or rescues at project works or involving project
operations.
\73\ Includes direct and contracting burden and cost.
\74\ Includes direct costs associated with the preparation and
submittal of Independent Consultant Team Proposals (proposed 18 CFR
12.34) and Reports for Periodic Inspections and Comprehensive
Assessments (proposed 18 CFR 12.36 and 12.38).
\75\ Includes direct and contracting burden and cost.
\76\ Proposed 18 CFR 12.33(a) includes a provision for Licensees
to request a written request to be excluded from the requirements of
18 CFR Subpart D in extraordinary circumstances.
\77\ Includes direct costs associated with the preparation and
submittal of Owner's Dam Safety Program Document (proposed 18 CFR
12.60 and 12.63), Statements of Qualifications for External Audit or
Peer Review (proposed 18 CFR 12.65(b)), and Reports of Audits or
Peer Review (proposed 18 CFR 12.65(c)).
---------------------------------------------------------------------------
100. Action: Revision to the scope of Independent Consultant's
Safety Inspection Reports, Owner's Dam Safety Program, and addition of
reporting requirements related to public safety incidents at hydropower
projects.
101. OMB Control No.: 1902-TBD.
102. Respondents: Hydropower licensees (and applicants, as
applicable), including municipalities, businesses, private citizens,
and for-profit and not-for-profit institutions.
103. Frequency of Information: On occasion, except for reports on
periodic inspections and comprehensive assessment, which must be
submitted as proposed under 18 CFR 12.40:
For any project that was inspected in accordance with 18
CFR part 12 prior to January 1, 2021, a periodic inspection or
comprehensive assessment must be completed, and a report on it filed,
within five years of the due date of the most recent report. In
addition, the first comprehensive assessment must be completed, and the
report on it filed, by December 31, 2034.
A licensed project development is subject to a different
set of deadlines if the development was not inspected in accordance
with 18 CFR part 12 prior to January 1, 2021, under the Commission's
rules in effect on January 1, 2020. In these circumstances, the first
comprehensive assessment and the report on it are due:
[cir] Not later than two years after the date of issuance of the
order licensing a development or amending a license to include that
development, if the development meets the criteria specified in
Sec. Sec. 12.30(a)(1) or 12.30(a)(2), and was constructed before the
date of issuance of such order.
[cir] Not later than five years after the date of issuance of the
order licensing that development, or amending a license to include that
development, if the development was constructed after the date of
issuance of such order.
[cir] No later than two years after a date specified by the
Regional Engineer, for other developments that were not inspected prior
to January 1, 2021, under the Commission's rules in effect on January
1, 2020.
104. Necessity of Information: The Commission proposes the changes
in this NOPR in order to enhance the ability of Commission staff to
protect the safety of dams and the public; to reduce the risk to life,
health, and property associated with hydropower projects; and to comply
with guidance from FEMA's Interagency Committee on Dam Safety.
105. Internal Review: The Commission has reviewed the proposed
changes and has determined that such changes are necessary. These
requirements conform to the Commission's need for efficient information
collection, communication, and management within the energy industry.
The Commission has specific, objective support for the burden estimates
associated with the information collection requirements.\78\
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\78\ Commission staff contacted fewer than nine parties to
obtain supporting information in order to benchmark burden
estimates.
---------------------------------------------------------------------------
106. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown,
Office of the Executive Director], by email to [email protected],
or by phone (202) 502-8663.
B. Environmental Analysis
107. The Commission is required to prepare an environmental
assessment or an environmental impact statement for any action that may
have a significant effect on the human environment.\79\ Excluded from
this requirement are rules that are clarifying, corrective, or
procedural, or that do not substantially change the effect of
legislation or the regulations being amended.\80\ This proposed rule
proposes to revise the Commission's dam safety regulations by
incorporating a two-tier structure for independent consultant safety
inspections, codifying guidance requiring licensees to develop an
owner's dam safety program and a public safety plan; expanding the
scope of public safety incident reporting; and incorporating various
minor revisions. Because this proposed rule does not
[[Page 45044]]
substantially change the effect of the Commission's part 12
regulations, preparation of an environmental assessment or
environmental impact statement is not required.
---------------------------------------------------------------------------
\79\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987)
(cross-referenced at 41 FERC ] 61,284).
\80\ 18 CFR 380.4(a)(2)(ii).
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C. Regulatory Flexibility Act
108. The Regulatory Flexibility Act of 1980 (RFA) \81\ generally
requires a description and analysis of proposed rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a proposed rule and minimize any
significant economic impact on a substantial number of small
entities.\82\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a proposed rule will not have a significant
economic impact on a substantial number of small entities.\83\
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\81\ 5 U.S.C. 601-612.
\82\ Id. 603(c).
\83\ Id. 605(b).
---------------------------------------------------------------------------
109. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\84\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\85\ Under SBA's current size
standards, a hydroelectric power generator (NAICS code 221111) \86\ is
small if, including its affiliates, it employs 500 or fewer people.\87\
---------------------------------------------------------------------------
\84\ 13 CFR 121.101.
\85\ Id. 121.201.
\86\ The North American Industry Classification System (NAICS)
is an industry classification system that Federal statistical
agencies use to categorize businesses for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry
Classification System, https://www.census.gov/eos/www/naics/.
\87\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------
110. If enacted, the proposed revisions to part 12, subpart D would
directly affect all hydropower licensees that are currently required to
file Independent Consultant's Safety Inspection Reports. Since the
number of licensed projects per respondent varies from one to more than
50, the number of respondents does not correlate directly to the number
of responses. Based on data over the preceding ten-year-period,
Commission staff estimated the expected number of responses from
entities that qualify as small. In total, approximately 132 entities
qualify as small and would be expected to file approximately 225
responses (30%) with the Commission over the ten-year cycle. The
remaining 525 responses (70%) would be filed by 106 entities that do
not qualify as small.
111. The Commission notes that the projects owned by entities that
qualify as small entities are typically smaller and/or less complex
than those owned by large entities. Thus, the annual incremental cost
to small entities would likely skew towards the ``Simple Hydroelectric
Facility'' category presented in the burden estimates provided above in
the Information Collection Statement section. In addition, the proposed
rule incorporates provisions that grant Commission staff the authority,
upon demonstration by the licensee and Commission review and acceptance
of appropriate justification, to waive or reduce the scope of specific
components of an Independent Consultant's Safety Inspection (e.g.,
waiving the requirement to perform a PFMA or risk analysis) or to
change the type of inspection report (e.g., by allowing an inspection
scheduled as a comprehensive assessment to be performed instead as a
periodic inspection). The Commission has included these provisions to
focus effort on those projects that present greater risk to life,
health, and property; and to alleviate the potential economic impact on
licensees of simple projects that present less risk. Since the burden
estimates include all components of an Independent Consultant's Safety
Inspection, utilization of these provisions may result in a lower
incremental cost for small entities.
112. The proposed addition of part 12, subpart F, which would
codify the Owner's Dam Safety Program, would only apply to entities
that are responsible for one or more projects classified as having a
high hazard potential. The Commission expects the Owner's Dam Safety
Program to improve communication and understanding within licensee
organizations as to their responsibilities for ensuring dam safety and
protection of the public, and may contribute to an increased likelihood
that potential dam safety issues are caught and addressed before they
present an imminent danger to life safety or property.
113. Because those licensees required to prepare an Owner's Dam
Safety Program due to their project's hazard potential classification
have already done so,\88\ the Commission does not anticipate that the
proposed codification of subpart F will impose any additional burden or
cost on licensees, regardless of their status as a small or large
entity.
---------------------------------------------------------------------------
\88\ See supra P 94.
---------------------------------------------------------------------------
114. With respect to the filing of public safety incidents
involving the rescue of any person at a hydroelectric facility, the
Commission estimates that most affected entities qualify as small
entities. But, as reflected in the burden and cost estimates provided
above, the Commission expects an additional two burden hours (and
corresponding $166, an amount that would not be considered significant)
for licensees or applicants, regardless of their status as small or
large.
115. While the proposed revisions to subpart D may have some
increased economic impact on a limited number of small entities, these
improvements to the independent consultant safety inspection process
are necessary, and the associated costs justified, by the Commission's
Congressionally-mandated mission to ensure the protection of life,
health, and property from risks associated with licensed hydroelectric
facilities. In addition, the proposed revisions to subpart D are
intended to help prevent future dam safety incidents that could
potentially result in significant economic impacts on small entities
(e.g., financial costs associated with causing life loss or property
damage, major project repairs, lost revenue due to the inability to
operate the project, etc.).
116. In summary, based on the estimated costs included in Table 3
above, the estimated economic impacts on small entities as a result of
the proposed rule could range from approximately $166 (for the
submittal of a one-time request for an exemption from part 12, subpart
D) to over $7,000 per year for each complex project. A representative
cost for a typical small entity with one or more simple projects would
be approximately $2,500 per year per project subject to part 12,
subpart D.\89\ Currently, Commission staff estimates that over eighty
percent of the small entities have two or fewer projects subject to
subpart D.
---------------------------------------------------------------------------
\89\ Commission staff estimates that more than half of the 132
small entities have one or more simple projects and no complex
projects.
---------------------------------------------------------------------------
117. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
D. Comment Procedures
118. The Commission invites interested persons to submit comments
on the matters and issues proposed in this notice to be adopted,
including any related matters or alternative proposals that commenters
may wish to discuss. Comments are due September 22, 2020. Comments must
refer to Docket No. RM20-9-000, and must include the
[[Page 45045]]
commenter's name, the organization they represent, if applicable, and
their address.
119. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
120. Commenters that are not able to file comments electronically
must send an original of their comments to: Federal Energy Regulatory
Commission, Secretary of the Commission, 888 First Street NE,
Washington, DC 20426.
121. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
E. Document Availability
122. In addition to publishing the full text of this document in
the Federal Register, the Commission provides all interested persons an
opportunity to view and print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
123. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
124. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
List of Subjects in 18 CFR Part 12
Electric power, Reporting and recordkeeping requirements, Safety.
By direction of the Commission.
Issued: Issued July 16, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the Federal Energy Regulatory
Commission proposes to amend part 12, chapter I, title 18, Code of
Federal Regulations, as follows:
PART 12--SAFETY OF WATER POWER PROJECTS AND PROJECT WORKS
0
1. The authority citation for part 12 is revised to read as follows:
Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.
Subpart A--General Provisions
0
2. Amend Sec. 12.3 by:
0
a. Revising paragraphs (b)(3), (b)(4) introductory text, and (b)(4)(ii)
and (v);
0
b. Redesignating paragraph (b)(4)(xiii) as (b)(4)(xix);
0
c. Adding a new paragraph (b)(4)(xiii);
0
d. Redesignating paragraph (b)(11) as (b)(15);
0
e. Adding new paragraph (b)(11); and
0
f. Adding paragraphs (b)(12 through (14).
The revisions and addition read as follows:
Sec. 12.3 Definitions.
* * * * *
(b) * * *
(3) Authorized Commission representative means the Director of the
Office of Energy Projects, the Director of the Division of Dam Safety
and Inspections, the Regional Engineer, or any other member of the
Commission staff whom the Commission may specifically designate.
(4) Condition affecting the safety of a project or project works
means any condition, event, or action at the project which might
compromise the safety, stability, or integrity of any project work or
the ability of any project work to function safely for its intended
purposes, including navigation, water power development, or other
beneficial public uses, including recreation; or which might otherwise
adversely affect life, health, or property. Conditions affecting the
safety of a project or project works include, but are not limited to:
* * * * *
(ii) Failure of, misoperation of, or failure to operate when
attempted any facility that controls the release or storage of
impounded water, such as a gate or a valve;
* * * * *
(v) Internal erosion, piping, slides, or settlements of materials
in any dam, foundation, abutment, dike, or embankment;
* * * * *
(xiii) Overtopping of any dam, abutment, canal, or water
conveyance;
* * * * *
(11) Water conveyance means any canal, penstock, tunnel, flowline,
flume, siphon, or other feature, constructed or natural, which
facilitates the movement of water for the generation of hydropower,
environmental benefit, or other purpose required by the project
license.
(12) Guidelines means the Engineering Guidelines for the Evaluation
of Hydropower Projects established, and from time to time revised, by
the Director of the Division of Dam Safety and Inspections, and
available on the Commission's website.
(13) Owner's Dam Safety Program means the written document that
formalizes a licensee's dam safety program, including, but not limited
to, the licensee's dam safety policies; objectives; expectations;
responsibilities; training program; communication, coordination, and
reporting; record keeping; succession planning; continuous improvement;
and audits and assessments.
(14) Hazard potential for any dam, canal, or water conveyance is a
classification based on the potential consequences in the event of
failure or misoperation of the dam, canal, or water conveyance, and is
subdivided into categories (e.g., Low, Significant, High).
(i) High hazard potential generally indicates that failure or
misoperation of the project feature will probably cause loss of human
life.
(ii) Significant hazard potential and low hazard potential
generally indicate that failure or misoperation will probably not cause
loss of human life but may have some amount of economic, environmental,
or other consequences.
(iii) Additional information. Other information on hazard potential
classifications is provided in the Guidelines.
* * * * *
0
3. Amend Sec. 12.4 by:
0
a. Revising paragraphs (b)(2)(ii)(B) and (b)(2)(iii)(A) and (B);
0
b. Adding paragraphs (b)(2)(iii)(C) and (D);
0
c. Revising paragraph (c)(1), (c)(2) introductory text, and (c)(3); and
0
d. Adding paragraph (d).
The revisions and addition read as follows:
Sec. 12.4 Staff administrative responsibility and supervisory
authority.
* * * * *
[[Page 45046]]
(b) * * *
(2) * * *
(ii) * * *
(B) Any condition affecting the safety of a project or project
works or any death, serious injuries, or rescues that occur at, or
might be attributable to, the water power project;
(iii) * * *
(A) Any emergency action plan filed under subpart C of this part;
(B) Any Owner's Dam Safety Program filed under subpart F of this
part;
(C) Any plan of corrective measures, including related schedules,
submitted after the report of an independent consultant pursuant to
Sec. 12.36 or Sec. 12.38 or any other inspection report; or
(D) Any public safety plan filed under Sec. 12.52(b).
* * * * *
(c) * * *
(1) Any order or directive issued under this part by a Regional
Engineer or other authorized Commission representative may be appealed
to the Commission under Sec. 385.207 of this chapter.
(2) Any order or directive issued under this part by a Regional
Engineer or other authorized Commission representative is immediately
effective and remains in effect until:
* * * * *
(3) An appeal or motion for rescission, amendment, or stay of any
order or directive issued under this part must contain a full
explanation of why granting the appeal or the request for rescission or
amendment of the order or directive, or for stay for the period
requested, will not endanger life, health, or property.
(d) Failure to comply. If a licensee fails to comply with any order
or directive issued under this part by the Commission, a Regional
Engineer, or other authorized Commission representative, the licensee
may be subject to sanctions, including, but not limited to, civil
penalties, orders to cease generation, or license revocation.
Subpart B--Reports and Records
0
4. Amend Sec. 12.10 by revising the second sentence of paragraph
(a)(1) and by revising paragraph (b) to read as follows:
Sec. 12.10 Reporting safety-related incidents.
(a) * * *
(1) * * * The initial oral report must be made as soon as
practicable after that condition is discovered, preferably within 72
hours, without unduly interfering with any necessary or appropriate
emergency repair, alarm, or other emergency action procedure.
* * * * *
(b) Deaths, serious injuries, or rescues. (1) Promptly after
becoming aware of any drowning or other incident resulting in death,
serious injury, or rescue that occurs at the project works or involves
project operation, the applicant or licensee must report that incident
to the Regional Engineer in writing, including a description of the
cause and location of the incident.
(2) The written report of any death, serious injury, or rescue that
occurs at the project works or involves project operations, and is
considered or alleged to be project related, must also describe any
remedial actions taken or proposed to avoid or reduce the chance of
similar occurrences in the future and be verified in accordance with
Sec. 12.13.
(3) Incidents that are not project-related may be reported by
providing a copy of a clipping from a newspaper article, if available.
(4) For the purposes of this paragraph, project related includes
any deaths, serious injuries, or rescues that:
(i) Involve a project dam, spillway, intake, outlet works,
tailrace, power canal, powerhouse, powerline, other water conveyance,
or other appurtenances; or
(ii) Involve changes in water levels or flows caused by generating
units, project gates, or other flow regulating equipment; or
(iii) Are otherwise attributable to project works and/or project
operations.
0
5. Amend Sec. 12.12 by revising paragraphs (a)(1)(ii) and (b)(3) and
adding paragraph (d) to read as follows:
Sec. 12.12 Maintenance of records.
(a) * * *
(1) * * *
(ii) Instrumentation observations and data collected during
construction, operation, or maintenance of the project, including
continuously maintained tabular records and graphs illustrating the
data collected pursuant to Sec. 12.51; and
* * * * *
(b) * * *
(3) In accordance with the provisions of part 125 of this chapter,
the applicant or licensee may select its own storage media to maintain
original records or record copies at the project site, provided that
appropriate equipment is available to view the records.
* * * * *
(d) Provision of records. If the project is subject to subpart D of
this part, or if requested by the Regional Engineer, the applicant or
licensee must provide to the Regional Engineer physical and electronic
copies of the documents listed in paragraph (a)(1) of this section,
except as provided in paragraph (a)(2) of this section.
Subpart C--Emergency Action Plans
Sec. 12.20 [Amended]
0
6. Amend Sec. 12.20 in paragraph (a) by removing the words ``three
copies of''.
Sec. 12.22 [Amended]
0
7. Amend Sec. 12.22 as follows:
0
a. In paragraph (a)(1) introductory text, remove ``the guidelines
established, and from time to time revised, by the Director of the
Office of Energy Projects (available from the division of Inspections
or the Regional Engineer)'' and add in its place ``the Guidelines'';
and
0
b. In paragraph (a)(2) introductory text, remove ``the guidelines
established by the Director of the Office of Energy Projects'' and add
in its place ``the Guidelines''.
Sec. 12.24 [Amended]
0
8. Amend 12.24 in paragraph (c)(3) by removing the words ``three copies
of''.
0
9. Revise subpart D to read as follows:
Subpart D--Review, Inspection, and Assessment by Independent Consultant
Sec.
12.30 Applicability.
12.31 Definitions.
12.32 General inspection requirement.
12.33 Exemption.
12.34 Approval of independent consultant team.
12.35 Periodic inspection.
12.36 Report on a period inspection.
12.37 Comprehensive assessment.
12.38 Report on a comprehensive assessment.
12.39 Evaluation of spillway adequacy.
12.40 Time for inspections and reports.
12.41 Corrective measures.
Subpart D--Review, Inspection, and Assessment by Independent
Consultant
Sec. 12.30 Applicability.
This subpart applies to any licensed project development that:
(a) Has a dam--
(1) That is more than 32.8 feet (10 meters) in height above
streambed, as defined in Sec. 12.31(d); or
(2) With an impoundment gross storage capacity of more than 2,000
acre-feet (2.5 million cubic meters), as defined in Sec. 12.31(e);
(b) That has a project feature (dam, canal, or water conveyance) or
any portion thereof that has a high hazard potential, as defined in
Sec. 12.3(b)(14); or
(c) Is determined by the Regional Engineer or other authorized
Commission representative to require inspection by an independent
consultant under this subpart.
[[Page 45047]]
Sec. 12.31 Definitions.
For purposes of this subpart:
(a) Independent consultant means any person who:
(1) Is a licensed professional engineer;
(2) Has at least 10 years of experience and expertise in dam design
and construction and in the evaluation and assessment of the safety of
existing dams;
(3) Is not an employee of the licensee or its affiliates;
(4) Has not been an employee of the licensee or its affiliates
within two years prior to performing engineering and/or scientific
services for an inspection or assessment under this subpart; and
(6) Has not been an agent acting on behalf of the licensee or its
affiliates, prior to performing engineering and/or scientific services
for an inspection or assessment under this subpart, in a manner and for
a time period as defined in the Guidelines.
(b) Independent consultant team means one or more independent
consultant(s) and, as needed, additional qualified engineering and
scientific professionals who also meet the requirements of paragraphs
(a)(3) through (5) of this section that collectively have demonstrable
experience and expertise in dam design, construction, and the
evaluation and assessment of the safety of existing dams, commensurate
with the scale, complexity, and relevant technical disciplines of the
project and type of review, inspection, and assessment being performed
(periodic inspection or comprehensive assessment, as defined in this
section).
(c) Height above streambed means:
(1) For a dam with a spillway, the vertical distance from the
lowest elevation of the natural streambed at the downstream toe of the
dam to the maximum water storage elevation possible without any
discharge from the spillway. The maximum water storage elevation is:
(i) For gated spillways, the elevation of the tops of the gates;
(ii) For ungated spillways, the elevation of the spillway crest or
the top of any flashboards, whichever is higher;
(2) For a dam without a spillway, the vertical distance from the
lowest elevation of the natural streambed at the downstream toe of the
dam to the lowest point on the crest of the dam.
(d) Gross storage capacity means the maximum possible volume of
water impounded by a dam with zero spill; that is, without the
discharge of water over the dam or a spillway.
(e) Periodic inspection means an inspection that meets the
requirements of Sec. 12.35 and is performed by an independent
consultant team.
(f) Comprehensive assessment means a project review, inspection,
and assessment that meets the requirements of Sec. 12.37 and is
performed by an independent consultant team.
(g) Previous Part 12D Inspection means the most recent inspection
performed in accordance with the provisions of this subpart (a periodic
inspection, comprehensive assessment, or an inspection performed in
accordance with the rules established by Order 122).
(h) Previous Part 12D Report means the report on the Previous Part
12D Inspection.
(i) Grant of waiver. The Director of the Division of Dam Safety and
Inspections may, for good cause shown, grant a waiver of the 10-year
requirement in paragraph (a)(2) of this section. Any petition for
waiver under this paragraph must be filed in accordance with Sec.
385.207 of this chapter.
Sec. 12.32 General inspection requirement.
The project works of each development to which this subpart
applies, excluding transmission and transformation facilities, must be
inspected on a periodic basis by an independent consultant team to
identify any actual or potential deficiencies that might endanger life,
health, or property, including deficiencies that may be in the
condition of those project works or in the quality or adequacy of
project maintenance, safety, methods of operation, analyses, and other
conditions described in the Guidelines. A report must be prepared by
the independent consultant team, by or under the direction of at least
one independent consultant, who may be a member of a consulting firm,
to document the findings and evaluations made during their inspection.
The inspection must be performed by the independent consultant team,
and the report must be filed by the licensee, in accordance with the
procedures in this subpart and as further described in the Guidelines.
Sec. 12.33 Exemption.
(a) Upon written request from the licensee, the Director of the
Division of Dam Safety and Inspections may grant an exemption from the
requirements of this subpart in extraordinary circumstances that
clearly establish good cause for exemption.
(b) Good cause for exemption may include the finding that the
development in question has no dam, canal, or other water conveyance
except those that meet the criteria for low hazard potential as defined
in Sec. 12.3(b)(14).
(c) An exemption from this subpart, granted prior to [EFFECTIVE
DATE OF FINAL RULE], no longer constitutes an exemption from the
requirements of this subpart. A licensee must submit a subsequent
written request for exemption to the Director of the Division of Dam
Safety and Inspections, which may be granted at the discretion of the
Director.
Sec. 12.34 Approval of independent consultant team.
(a) The licensee must obtain written approval of the independent
consultant team, from the Director of the Division of Dam Safety and
Inspections, prior to the performance of a periodic inspection or
comprehensive assessment under this subpart.
(b) At least 180 days prior to performing a periodic inspection or
comprehensive assessment under this subpart, the licensee must submit
to the Director of the Division of Dam Safety and Inspections, with a
copy to the Regional Engineer, a detailed independent consultant team
proposal.
(1) If the independent consultant team comprises one person, the
detailed independent consultant team proposal must:
(i) Describe the experience of the independent consultant; and
(ii) Show that the independent consultant meets the requirements as
defined in Sec. 12.31(a) and (b)(2).
(2) If the independent consultant team comprises more than one
person, the detailed independent consultant team proposal must:
(i) Designate one or more persons to serve as the independent
consultant(s);
(ii) Show that each independent consultant meets the requirements
as defined in Sec. 12.31(a);
(iii) Describe the experience of each member of the independent
consultant team; and
(iv) Show that the independent consultant team meets the
requirements as defined in Sec. 12.31(b)(2).
(c) Regardless of experience and qualifications, any independent
consultant team member may be disapproved by the Director of the
Division of Dam Safety and Inspections for good cause, such as having
had one or more reports rejected by the Commission within the preceding
five years.
Sec. 12.35 Periodic inspection.
A periodic inspection must include:
(a) Review of prior reports. The independent consultant team must
review and consider all relevant reports
[[Page 45048]]
on the safety of the development made by or written under the direction
of Federal or State agencies, submitted under Commission regulations,
or made by other consultants. The independent consultant team must
perform sufficient review to have, at the time of the periodic
inspection, a full understanding of the design, construction,
performance, condition, downstream hazard, monitoring, operation, and
potential failure modes of the project works.
(b) Physical field inspection. The independent consultant team must
perform a physical field inspection of accessible project features,
including galleries, adits, vaults, conduits, earthen and concrete-
lined spillway chutes, the exterior of water conveyances, and other
non-submerged project features that may require specialized access to
facilitate inspection. The inspection shall include review and
assessment of all relevant data concerning:
(1) Settlement;
(2) Movement;
(3) Erosion;
(4) Seepage;
(5) Leakage;
(6) Cracking;
(7) Deterioration;
(8) Hydraulics;
(9) Hydrology;
(10) Seismicity;
(11) Internal stress and hydrostatic pressures in project
structures and their foundations and abutments;
(12) The condition and performance of foundation drains, dam body
drains, relief wells, and other pressure-relief systems;
(13) The condition and performance of any post-tensioned anchors
installed, and other major modifications completed, to improve the
stability of project works;
(14) The stability of critical slopes adjacent to a reservoir or
project works; and
(15) Regional and site geological conditions.
(c) Review of surveillance and monitoring plan and data. The
independent consultant team must:
(1) Review the surveillance procedures, instrumentation layout,
installation details, monitoring frequency, performance history, data
history and trends, and relevance to potential failure modes; and
(2) Review the frequency and scope of other surveillance
activities.
(d) Review of dam and public safety programs--(1) Hazard potential.
Review the potential inundation area and document any significant
changes in the magnitude and location of the population at risk since
the previous inspection under this subpart.
(2) Emergency Action Plan. If the project development is subject to
subpart C of this part, review the emergency action plan, including the
emergency action plan document itself, the licensee's training program,
and any related time-sensitivity assessment(s).
(3) Public Safety Program. Review the access restrictions and
public safety warning signs and devices near the project works pursuant
to Sec. 12.52.
(4) Owner's Dam Safety Program. If the project is subject to
subpart F of this part, review the implementation of the licensee's
Owners Dam Safety Program with respect to the project development being
inspected under this subpart.
Sec. 12.36 Report on a periodic inspection.
(a) Format. The report must include documentation of all the items
listed in Sec. 12.35 and conform to the format prescribed by the
Guidelines.
(b) Specific evaluation. The report must include specific
evaluation of:
(1) The history of performance of the project works through visual
observations, analysis of data from monitoring instruments, and
previous inspections;
(2) The quality and adequacy of maintenance, surveillance, methods
of project operations, and risk reduction measures for the protection
of public safety and continued project operation;
(3) Potential failure modes, including:
(i) Each identified potential failure mode associated with the
project works and whether any potential failure mode is active or
developing; and
(ii) Whether any inspection observations or other conditions
indicate that an unidentified potential failure mode is active,
developing, or is of sufficient concern to warrant development through
a supplemental potential failure modes analysis;
(4) Whether any observed conditions warrant reconsideration of the
current hazard potential classification; and
(5) The adequacy of the project's:
(i) Emergency action plan;
(ii) Public safety program; and
(iii) Implementation of the Owner's Dam Safety Program with respect
to the project development being inspected under this subpart.
(c) Changes since the previous inspection. The report must include
a status update and evaluation of any changes since the Previous Part
12D Inspection concerning:
(1) Hydrology. Identify any events that may affect the conclusions
of the hydrologic or hydraulic analyses of record and evaluate the
effect on the safety and stability of project works.
(2) Seismicity. Identify any seismic events that may affect the
conclusions of the seismicity analyses of record and evaluate the
effect on the safety and stability of project works.
(3) Modifications to project works. Identify any modifications made
to project works and evaluate the performance thereof with respect to
the design intent.
(4) Methods of operation. Describe any changes to standard
operating procedures, equipment available for project operation, and
evaluate the effect on the safety and stability of project works.
(5) Results of Special Inspections. Summarize the findings of any
special inspections (dive inspection, rope-access gate inspection, toe
drain inspection, etc.), if any.
(6) Previous recommendations. List and document the status of
recommendations made by the independent consultant in the Previous Part
12D Report, and any earlier recommendations that remained incomplete at
the time of the Previous Part 12D Report.
(7) Outstanding studies and studies completed since the previous
inspection. List and document the status of any studies completed since
the Previous Part 12D Inspection and those that remain outstanding at
the time of the periodic inspection.
(d) Recommendations. Based on the independent consultant team's
field observations, evaluations of the project works, and the
maintenance, surveillance, and methods of operation of the development,
the report must contain the independent consultant's recommendations
on:
(1) Any corrective measures, described in Sec. 12.41, necessary
for the structures, maintenance or surveillance procedures, or methods
of operation of the project works;
(2) A reasonable time to carry out each corrective measure; and
(3) Any new or additional monitoring instruments, periodic
observations, special inspections, or other methods of monitoring
project works or conditions that may be required.
(e) Dissenting views. If the inspection and report were conducted
and prepared by more than one independent consultant, the report must
clearly identify and describe any dissenting views concerning the
evaluations or recommendations of the report that might be held by any
individual consultant.
(f) List of participants. The report must identify all professional
personnel who have participated in the inspection of the project or in
preparation of the report and the independent
[[Page 45049]]
consultant(s) who directed those activities.
(g) Statement of independence. Each independent consultant
responsible for the report must declare that all conclusions and
recommendations in the report are made independently of the licensee,
its employees, and its representatives.
(h) Signature. The report must be signed and sealed by each
independent consultant responsible for the report.
(i) Other information. The report must provide other information
listed in the Guidelines.
Sec. 12.37 Comprehensive assessment.
A comprehensive assessment must include:
(a) Review of prior reports and analyses of record. The independent
consultant team must review and consider all relevant reports on the
safety of the development made by or written under the direction of
Federal or state agencies, submitted under Commission regulations, or
made by other consultants.
(1) In addition to the requirements of Sec. 12.35(a)(1), the
independent consultant team must have a full understanding of the risk,
as defined in the Guidelines, associated with the project works.
(2) The independent consultant team shall perform a detailed review
of the as-built drawings; monitoring data; and the methods,
assumptions, calculations, results, and conclusions of the analyses of
record pertaining to:
(i) Geology and seismicity;
(ii) Hydrology and hydraulics;
(iii) Stability and structural integrity of project works; and
(iv) Any other analyses relevant to the safety, stability, and
operation of project works.
(b) Physical field inspection. The independent consultant team must
perform a physical field inspection that complies with Sec. 12.35(b).
(c) Review of surveillance and monitoring plan and data. The
independent consultant team must perform a review of surveillance and
monitoring plan and data that complies with Sec. 12.35(c).
(d) Review of dam and public safety programs. The independent
consultant team must perform a review of dam and public safety programs
that complies with Sec. 12.35(d).
(e) Supporting Technical Information Document. The comprehensive
assessment shall include a review of the Supporting Technical
Information Document and evaluation of its conformance with the
Guidelines.
(f) Potential failure modes analysis. The comprehensive assessment
shall include a potential failure modes analysis, conducted in
accordance with the Guidelines.
(g) Risk analysis. The comprehensive assessment shall include a
risk analysis, conducted in accordance with the scope and procedures
established in the Guidelines. The Regional Engineer may, for good
cause shown, grant a waiver of the requirement to complete a risk
analysis. Any petition for waiver under this paragraph must be filed in
accordance with Sec. 385.207 of this chapter.
Sec. 12.38 Report on a comprehensive assessment.
(a) Format. The comprehensive assessment report must include
documentation of all the items listed Sec. 12.37 and conform to the
format prescribed by the Guidelines.
(b) Specific evaluation. In addition to the items listed in Sec.
12.36(b)(1) through (5), the comprehensive assessment report must
evaluate:
(1) The adequacy of spillways, including the effects of overtopping
of nonoverflow structures, as described in Sec. 12.39;
(2) The Structural adequacy and stability of structures under all
credible loading conditions;
(3) The potential for internal erosion and/or piping of
embankments, foundations, and abutments;
(4) The design and construction practices used during original
construction and subsequent modifications, in comparison with the
industry best practices in use at the time of the inspection under this
subpart;
(5) The adequacy of the Supporting Technical Information Document
and the attached electronic records; and
(6) The adequacy and findings of the potential failure mode
analysis and risk analysis report(s).
(c) Analyses of record. The comprehensive assessment report must
include the independent consultant team's evaluation of the
assumptions, methods, calculations, results, and conclusions of the
items listed in Sec. 12.37(a)(2)(i) through (iv). The evaluation must:
(1) Address the accuracy, relevance, and consistency with the
current state of the practice of dam engineering;
(2) Be accompanied by sufficient documentation of the independent
consultant team's rationale, including, as needed, new calculations by
the independent consultant team to verify that the assumptions,
methods, calculations, results, and conclusions in the analyses of
record are correct; and
(3) If the independent consultant team is unable to review the
analyses of record for any of the items listed in Sec. 12.37(a)(2)(i)
through (iv); or if the independent consultant team disagrees with the
assumptions, methods, calculations, results, or conclusions therein;
the independent consultant shall recommend that the licensee complete
new analyses to address the identified concerns.
(d) Changes since the previous inspection. The requirements of this
section are the same as described in Sec. 12.36(c).
(e) Recommendations. The requirements of this section are the same
as described in Sec. 12.36(d).
(f) Dissenting views. The requirements of this section are the same
as described in Sec. 12.36(e).
(g) List of participants. The requirements of this section are the
same as described in Sec. 12.36(f).
(h) Statement of independence. The requirements of this section are
the same as described in Sec. 12.36(g).
(i) Signature. The requirements of this section are the same as
described in Sec. 12.36(h).
(j) Other information. Provide other information listed in the
Guidelines.
Sec. 12.39 Evaluation of spillway adequacy.
The adequacy of any spillway must be evaluated, as part of a
comprehensive assessment or as otherwise requested by the Regional
Engineer, by considering hazard potential which would result from
failure of the project works during normal and flood flows.
(a) If structural failure would present a hazard to human life or
cause significant property damage, the independent consultant must
evaluate:
(1) The ability of project works to withstand the loading or
overtopping which may occur during floods;
(2) The capacity of spillways to prevent the reservoir from rising
to an elevation that would endanger the project works; and
(3) The potential for misoperation of; failure to operate; blockage
of; or debilitating damage to a spillway and its appurtenances
(including but not limited to structural, mechanical, and electrical
components of gates, valves, chutes, and training walls); and the
effect thereof on the maximum reservoir level and potential for
surcharged loading or overtopping to occur during floods.
(b) Spillway adequacy shall be evaluated for the magnitude of
flooding required by the Guidelines.
(c) If structural failure would not present a hazard to human life
or cause significant property damage, spillway adequacy may be
evaluated by means of a design flood of lesser magnitude than
[[Page 45050]]
the probable maximum flood provided that the most recent comprehensive
assessment report required by Sec. 12.38 provides a detailed
explanation of and rationale for the finding that structural failure
would not present a hazard to human life or cause significant property
damage.
Sec. 12.40 Time for inspections and reports.
(a) For any project that was inspected under this subpart prior to
January 1, 2021, under the Commission's rules in effect on January 1,
2020:
(1) A periodic inspection or comprehensive assessment must be
completed, and the report on it filed, within five years of the due
date of the Previous Part 12D Report.
(2) The Regional Engineer may require that the first report due to
be filed under this subpart after January 1, 2021 be a report on a
comprehensive assessment.
(3) The first comprehensive assessment under this subpart must be
completed, and the report on it filed, by December 31, 2034.
(b) For any project that was not inspected under this subpart prior
to January 1, 2021, under the Commission's rules in effect on January
1, 2020:
(1) For any development that meets the criteria specified in Sec.
12.30(a)(1) or (2), and was constructed before the date of issuance of
the order licensing that development, or amending a license to include
that development, the first comprehensive assessment under this subpart
must be completed, and the report on it filed, not later than two years
after the date of issuance of the order licensing that development or
amending the license to include that development.
(2) For any development that was constructed after the date of
issuance of the order licensing that development, or amending a license
to include that development, the first comprehensive assessment under
this subpart must be completed, and the report on it filed, not later
than five years after the date of issuance of the order licensing that
development or amending the license to include that development.
(3) For any development not set forth in either paragraph (b)(1) or
(2), the first comprehensive assessment under this subpart must be
completed, and the report on it filed, by a date specified by the
Regional Engineer. The filing date must not be more than two years
after the date of notification that a comprehensive assessment and
report under this subpart are required.
(c) Timing for subsequent reports filed under this subpart:
(1) A comprehensive assessment must be completed, and the report on
it filed, within ten years of the date the previous comprehensive
assessment report was due to be filed.
(2) A periodic inspection must be completed, and the report on it
filed, within five years of the date the previous comprehensive
assessment report was due to be filed.
(d) Extension of time: For good cause shown, the Regional Engineer
may extend the time for filing the report on a comprehensive assessment
or periodic inspection under this subpart.
(e) The Regional Engineer may require that any report due to be
filed under this subpart be a report on a comprehensive assessment or a
report on a periodic inspection, notwithstanding the type of review
(periodic inspection or comprehensive assessment) scheduled to be
performed under paragraphs (c)(1) and (2) of this section.
(f) Prior to performing a periodic inspection or comprehensive
assessment, a preliminary report prepared by the independent consultant
team must be filed with the Regional Engineer to document the initial
findings, understanding, and preparation of the independent consultant
team.
(1) For any periodic inspection, the preliminary report must be
filed in advance of the physical field inspection, in accordance with
the timing and procedures established in the Guidelines.
(2) For any comprehensive assessment, the preliminary report must
be filed in advance of the physical field inspection, potential failure
modes analysis, or risk analysis, whichever occurs first, in accordance
with the timing and procedures established in the Guidelines.
(3) If the Regional Engineer determines that the preliminary report
does not clearly demonstrate that the independent consultant team is
adequately prepared for the inspection, the Regional Engineer may
require the inspection to be postponed. Any such postponement shall not
constitute good cause for an extension of time under paragraph (d) of
this section.
Sec. 12.41 Corrective measures.
(a) Corrective measures. For items that are identified, during a
periodic inspection or comprehensive assessment under this subpart, as
requiring corrective action, the following conditions apply:
(1) Corrective plan and schedule. (i) Not later than 60 days after
a report on a periodic inspection or comprehensive assessment is filed
with the Regional Engineer, the licensee must submit to the Regional
Engineer a plan and schedule addressing the recommendations of the
independent consultant and for investigating, designing, and carrying
out any corrective measures that the licensee proposes to implement.
(ii) The plan and schedule may include any proposal, including
taking no action, that the licensee considers a preferable alternative
to any corrective measure recommended in the report of the independent
consultant. Any proposed alternative must be accompanied by the
licensee's complete justification and detailed analysis and evaluation
in support of that alternative.
(2) Carrying out the plan. The licensee must complete all
corrective measures in accordance with the plan and schedule submitted
to, and approved or modified by, the Regional Engineer, and on an
annual basis must submit a status report on the corrective measures
until all have been completed.
(3) Extension of time. For good cause shown, the Regional Engineer
may extend the time for filing the plan and schedule required by this
section.
(b) Emergency corrective measures. If, in the course of a periodic
inspection or comprehensive assessment conducted under this subpart, an
independent consultant discovers any condition for which emergency
corrective measures are advisable, the independent consultant must
immediately notify the licensee and the licensee must report that
condition to the Regional Engineer pursuant to Sec. 12.10(a) of this
part. Emergency corrective measures must be included in the corrective
plan and schedule required by paragraph (a)(1) of this section, and are
also subject to paragraphs (a)(2) and (3) of this section.
Subpart E--Other Responsibilities of Applicant or Licensee
Sec. Sec. 12.40 through 12.44 [Redesignated as Sec. Sec. 12.50
through 12.54]
0
10. Redesignate Sec. Sec. 12.40 through 12.44 as Sec. Sec. 12.50
through 12.54, respectively.
Sec. Sec. 12.55 through 12.59 [Reserved]
0
11. Add reserved Sec. Sec. 12.55 through 12.59.
0
12. Revise newly redesignated Sec. 12.52 to read as follows:
Sec. 12.52 Warning and safety devices.
(a) To the satisfaction of, and within a time specified by the
Regional Engineer, an applicant or licensee must install, operate, and
maintain any signs, lights, sirens, barriers, or other safety devices
that may reasonably be necessary or desirable to warn the
[[Page 45051]]
public of fluctuations in flow from the project or otherwise to protect
the public in the use of project lands and waters.
(b) The Regional Engineer may require the applicant or licensee to
prepare, periodically update, and file with the Commission a public
safety plan that formalizes the installation, operation, and
maintenance of all necessary public safety devices. Public safety plans
must be developed in accordance with the Guidelines for Public Safety
at Hydropower Projects established, and from time to time revised, by
the Director of the Division of Dam Safety and Inspections.
Sec. 12.54 [Amended]
0
13. Amend newly redesignated Sec. 12.54 as follows:
0
a. In paragraph (b)(2), remove ``the periodic'' and add in its place
``an'' and add ``gate'' directly following the second appearance of the
word ``spillway''; and
0
b. In paragraph (c)(2), remove ``the periodic'' and add in its place
``an''.
0
14. Add subpart F, consisting of Sec. Sec. 12.60 through 12.65, to
read as follows:
Subpart F--Owner's Dam Safety Program
Sec.
12.60 Applicability.
12.61 Definitions.
12.62 General requirements.
12.63 Contents of Owner's Dam Safety Program.
12.64 Annual review and update of Owner's Dam Safety Program.
12.65 Independent external audit and peer review.
Sec. 12.60 Applicability.
The licensee of any dam or other project feature classified as
having a high or significant hazard potential, as defined in Sec.
12.3(b)(14), is required to submit an Owner's Dam Safety Program to the
Regional Engineer.
Sec. 12.61 Definitions.
For purposes of this subpart:
(a) Chief Dam Safety Engineer means the designated individual, who
is a licensed engineer, who oversees the implementation of the Owner's
Dam Safety Program and has primary responsibility for ensuring the
safety of the licensee's dam(s) and other project features.
(b) Chief Dam Safety Coordinator means the designated individual,
who is not required to be a licensed engineer, who oversees the
implementation of the Owner's Dam Safety Program and has primary
responsibility for ensuring the safety of the licensee's dam(s) and
other project features.
Sec. 12.62 General requirements.
(a) The Owner's Dam Safety Program shall designate either a Chief
Dam Safety Engineer or Chief Dam Safety Coordinator, as defined in
Sec. 12.61. Any Owner's Dam Safety Program that includes one or more
dams or other project features classified as having a high hazard
potential, as defined in Sec. 12.3(b)(14), shall designate a Chief Dam
Safety Engineer.
(b) The Owner's Dam Safety Program must be signed by the Owner and,
as applicable, the Chief Dam Safety Engineer or the Chief Dam Safety
Coordinator.
(c) The Owner's Dam Safety Program must be reviewed and updated on
a periodic basis as described in Sec. 12.64 and, if applicable, must
undergo an independent external audit or peer review as described in
Sec. 12.65.
(d) The Owner may delegate to others, such as consultants, the work
of establishing and executing the Owner's Dam Safety Program and role
of Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as
applicable.
(1) If the role of Chief Dam Safety Engineer or Chief Dam Safety
Coordinator is delegated to an outside party who does not oversee the
day-to-day implementation of the Owner's Dam Safety Program, the Owner
must designate an individual responsible for overseeing the day-to-day
implementation.
(2) The Owner shall retain ultimate responsibility for the safety
of the dams and other project features covered by the Owner's Dam
Safety Program.
Sec. 12.63 Contents of Owner's Dam Safety Program.
The Owner's Dam Safety Program shall contain, at a minimum, the
following sections:
(a) Dam safety policy, objectives, and expectations;
(b) Responsibilities for dam safety;
(c) Dam safety training program;
(d) Communication, coordination, reporting, and reports;
(e) Record keeping and databases;
(f) Continuous improvement; and
(g) Other information as further described by the Guidelines.
Sec. 12.64 Annual review and update of Owner's Dam Safety Program.
The Owner's Dam Safety Program, and the implementation thereof,
shall be reviewed at least once annually by the licensee's dam safety
staff and discussed with senior management of the Owner's organization.
The licensee shall submit the results of the annual review, including
findings, analysis, corrective measures, and/or revisions to the
Owner's Dam Safety Program, to the Regional Engineer.
Sec. 12.65 Independent external audit and peer review.
(a) Applicability. For licensees of one or more dams or other
project features classified as having a high hazard potential, as
defined in in Sec. 12.3(b)(14), an independent external audit or peer
review of the Owner's Dam Safety Program, and the implementation
thereof, shall be performed at an interval not to exceed five years.
(b) Qualifications. A statement of qualifications of the proposed
auditor(s) or peer review team shall be submitted to the Regional
Engineer for review, and written acceptance thereof must be obtained
from the Regional Engineer prior to performing the audit or peer
review.
(c) Reporting. (1) The auditor(s) or peer review team shall
document their findings in a report.
(2) The report on the audit or peer review shall be reviewed by the
Owner, Chief Dam Safety Engineer or Chief Dam Safety Coordinator, and
management having responsibility in the area(s) audited or reviewed.
(3) The report on the audit or peer review shall be submitted to
the Regional Engineer.
(d) Additional guidance. Additional guidance for performing
external audits and peer reviews shall be provided in the Guidelines.
[FR Doc. 2020-15917 Filed 7-23-20; 8:45 am]
BILLING CODE 6717-01-P