OAR 632-030-0035: Modification of an Operating Permit

(1) The modification of an operating permit may be initiated at any time by the permittee or by the Department. The term "modification," as used in this rule, means any modification, including but not limited to, "intensification" or "substantial modification," as defined in OAR 632-030-0010(6) and (11). The Department may circulate applications for intensification or substantial modifications to local government pursuant to ORS 517.830 and OAR 632-030-0030. (2) An operating permit may be modified by approval of the Department after timely notice and opportunity for review as provided by ORS 517.830(5) and OAR 632-030-0030 in order to assure compliance with existing laws and land-use requirements or to accommodate unforeseen developments that may affect the operating permit and reclamation plan as previously approved. (3) The Department may modify an operating permit or reclamation plan without the consent of the operator only as allowed by ORS 517.831. The Department initiation of a modification must be based on the potential for: substantial harm to off-site property, harm to threatened or endangered species, or channel changes or unstable pit walls. Therefore, a determination of substantial harm to off-site property may include likely effects when there is substantial evidence. For the three types of sites or concerns listed here, the substantial evidence may include on-site or off-site physical or biological indicators and other data: (a) Substantial harm to off-site property: documentation by the Department of a loss of lateral support of a property line, slope movement, failure planes, tension cracks, vegetation displacement, or other indicators of slope instability, or geotechnical reports, slope measurements, or other monitoring data submitted by others. (b) Harm to threatened or endangered species: documentation by the Department that threatened or endangered species are likely present and mine activities have stranded threatened or endangered fish on the floodplain or mine activities have caused harm to threatened or endangered species or a take is likely to occur. (c) Channel changes or unstable pit walls: documentation by the Department that stream bank erosion, channel migration, local geomorphic trends, site hydrology during flooding, and/or channel hydraulic conditions present clear indicators that pit wall stability is in jeopardy during future flood events. (4) Substantial harm to off-site property justifying a modification under this rule and the Act includes, but is not limited to: (a) Loss of vegetation or other effects due to embankment failure, pit wall, or storage pile failure (b) Loss of vegetation or other effects due to erosion, headcutting, channel avulsion, and/or channel migration that has resulted in or is likely to result in a breach into or pit capture of a floodplain gravel mine (c) Deposition of vegetation, soil, rock, other geologic materials, or mined materials or mine refuse (d) Impacts to jurisdictional wetlands, sloughs, bogs, stream channels, or other natural features or constructed flood levees, revetments, or irrigation reservoirs, irrigation ditches, and intakes.