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Massoud, Paul - Decision and Order, June 27, 1994

Decision and Order, June 27, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

PAUL T. MASSOUD

owner of an unsafe impoundment structure,
known as Chadwick's Dam, which is located three tenths of a mile
north of the hamlet of Chadwicks and
immediately west of New York State Highway Route No. 8
in the Town of New Hartford, Oneida County.

DECISION AND ORDER

Case No. R-6-1245-93-01

WHEREAS:

  1. Pursuant to a Notice of Hearing and Statement of Matters asserted personally served on Paul T. Massoud, owner of Chadwick's Dam, at 1640 Seymour Avenue, Utica, New York on March 23, 1994 and pursuant to a Notice of Hearing published in the Utica Observer-Dispatch and the Oneida Daily Sentinel on April 18 & 25, 1994 and in the Department's Environmental Notice Bulletin on April 20 & 27, 1994 a hearing was held before Administrative Law Judge ("ALJ") William J. Dickerson at 10:00 AM on May 17 and 31, 1994 in the 14th Floor Conference Room at the Department of Environmental Conservation, Region 6 Sub-Office, 207 Genesee Street, Utica, New York. The Department Staff was represented at the hearing by Randall C. Young, Esq. Assistant Regional Attorney. Mr. Paul T. Massoud appeared on his own behalf at the hearing held on May 17, 1994 but, as noted in the hearing report, he did not appear at the hearing on May 31, 1994 which was then continued as a default proceeding.
  2. Upon review of ALJ Dickerson's Hearing Report (copy attached), I concur with its Findings of Fact, Conclusions and Recommendation. The record establishes that Chadwick's Dam is an unsafe dam which, if not reconstructed or removed, will ultimately fail with consequent damage to downstream properties. The record also demonstrates that Chadwick's Dam currently serves no useful purpose.

NOW, THEREFORE, having fully considered this matter, it is ORDERED that:

  1. Within thirty (30) days after service of the Order, the owner of the dam, Paul T. Massoud, shall have the drainpipe valve opened to reduce the water level impounded by Chadwick's Dam.
  2. Within sixty (60) days after service of the Order, the owner of the dam, Paul T. Massoud shall submit to the Department plans prepared by a professional engineer registered in New York State for the breaching or removal of Chadwick's Dam so that it will no longer impound water.
  3. Within ninety (90) days of receiving written approval of the plans submitted for the breaching or removal of the dam from the Department, the owner of the dam, Paul T. Massoud, shall have the plans as approved carried out.
  4. If the owner of the dam, Paul T. Massoud, does not comply with the terms of this Order, the Department shall have the authority to enter upon the lands and waters where Chadwick's Dam is located for the purpose of breeching or removing the dam or in order to take other and further precautions which it may deem necessary to safeguard life or property or to protect the natural resources of the state against danger occasioned by the presence of Chadwick's Dam.
  5. All communications between the owner of the dam, Paul T. Massoud, and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 6, 317 Washington Street, Watertown, New York 13601.
  6. The provisions, terms and conditions of this Order shall bind the owner of the dam, Paul T. Massoud, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on his behalf.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
/s/
LANGDON MARSH, ACTING COMMISSIONER

DATED: Albany, New York
June 27, 1994

TO: Mr. Paul T. Massoud
1640 Seymour Avenue
Utica, New York 13501

Randall C. Young, Esq.
Assistant Regional Attorney
NYS Department of Environmental Conservation Region 6,
317 Washington Street
Watertown, New York 13601

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New york 1223-1550

In the Matter

- of -

PAUL T. MASSOUD

1640 Seymour Avenue
Utica, New York 13501

owner of an unsafe impoundment structure

known as Chadwick's Dam, which is located
three tenths of a mile north of the hamlet of Chadwicks and
immediately west of New York State Highway Route No. 8
in the Town of New Hartford, Oneida County.

Case No. R-6-1245-93-01

HEARING REPORT

- by -

/s/

William J. Dickerson
Administrative Law Judge

PROCEEDINGS

Pursuant to a Notice of Hearing and Statement of Matters asserted personally served on Paul T. Massoud, owner of Chadwick's Dam, at 1640 Seymour Avenue, Utica, New York on March 23, 1994 and pursuant to a Notice of Hearing published in the Utica Observer-Dispatch and the Oneida Daily Sentinel on April 18 & 25, 1994 and in the Department's Environmental Notice Bulletin on April 20 & 27, 1994 a hearing was held before Administrative Law Judge ("ALJ") William J. Dickerson at 10:00 AM on May 17, 1994 in the 14th Floor Conference Room at the Department of Environmental Conservation, Region 6 Sub-Office, 207 Genesee Street, Utica, New York. The hearing continued pursuant to an adjournment duly taken with the consent of the parties on May 31, 1994 at 10:00 AM at the same location. The hearing was held pursuant to Environmental Conservation Law ("ECL") 15-0507 to determine if an Order should be issued requiring the repair, reconstruction or removal of the impoundment structure known as Chadwick's Dam (Dam Identification No. 115D-5152) located three tenths of a mile north of the hamlet of Chadwicks and immediately west of New York State Highway Route No. 8 in the Town of New Hartford, Oneida County to protect the public health, safety or welfare.

The Department Staff was represented at the hearing by Randall C. Young, Esq. Assistant Regional Attorney. Mr. Paul T. Massoud appeared on his own behalf at the hearing held on May 17, 1994. As noted above, the hearing was adjourned with the consent of the parties to allow Mr. Massoud time to hire an attorney and engage an engineer with a view toward arriving at an agreement to settle this matter. Mr. Massoud did not appear at the adjourned hearing held on May 31, 1994 but advised Mr. Young by telephone that he had aggravated a prior back injury and he would be unable to attend the continuation of the hearing, that he had been unable to engage the services of either an attorney or an engineer and that he had no funds available. At Mr. Young's request, Mr. Massoud repeated this statement to the ALJ over the telephone. The ALJ again explained the hearing procedure to Mr. Massoud over the telephone in the presence of Mr. Young, after which the hearing continued as a default proceeding. The record was closed upon receipt of the transcript on June 9, 1994.

Position of the Department Staff

The Department Staff seek the repair, reconstruction or removal of Chadwick's Dam, which is also known as the Old Willowvale Bleachery Dam, because of erosion and progressive failure of the spillway channel.

Position of Paul T. Massoud

Mr. Massoud is willing to cooperate but he does not have the financial resources available to repair, reconstruct or remove the dam.

Background Information

The Department administers a dam safety program under the authority of Sections 15-0507 and 15-0511 of the Environmental Conservation Law. A dam is subject to the Department's Dam Safety Regulations (6 NYCRR Part 673) if it meets any of the following criteria: 1.) height equal to or greater than 10 feet; 2.) its maximum impoundment capacity is equal to or greater than 1 million gallons (3.07 acre feet); 3.) its drainage area is equal to or greater than one square mile; or 4.) it presents a threat to public health, safety, property or natural resources.

A dam may be assigned a hazard classification according to the potential impacts of a dam failure. Class A dams are located in areas where failure will damage nothing more than isolated buildings, undeveloped lands, or town or county roads and/or will cause no significant loss or serious environmental damage. Class B dams are located in areas where failure may damage isolated homes, main highways, minor railroads, interrupt the use of relatively important public utilities and/or will cause significant economic loss or serious environmental damage. Class C dams are located in areas where failure may cause loss of human life, serious damage to homes, industrial or commercial buildings, important public utilities, main highways or railroads and/or will cause extensive economic loss.

After an inspection or investigation, dams are assigned one of the following condition ratings:

  1. "Unsafe" - dams with deficiencies of such a nature that failure of the dam is imminent and immediate action is required to eliminate or reduce the danger. Among the deficiencies which could result in this rating are seepage which is carrying soil particles, significant erosion problems and serious structural deficiencies, including movement of the structure or major cracking.
  2. "Unsound" - dams with deficiencies of such a nature that the safety of the dam cannot be assured. among the deficiencies which could result in this rating are seriously inadequate spillway capacity, minor seepage problems or structural stability inadequacies.
  3. "Deficiently maintained" - dams with minor physical or operational problems which do not require further engineering analysis. Increased maintenance efforts are required to improve the condition of the dam.
  4. "No deficiencies noted" - inspection and/or analysis did not reveal any problem.

If a dam is classified as unsafe or unsound, the Department will notify the owner of the dam in writing of the condition rating of the dam, the hazard classification assigned to the dam and the action recommended to correct the deficiencies. The Department may issue an order after a hearing directing the owner of the dam to remove the dam or to reconstruct or repair the dam within a reasonable time and in the manner specified in the order. Failure to comply with the terms and conditions of the order is unlawful. If the order is violated, the Department may enter upon the lands and waters on which the dam is located to execute the order. The cost will be charged against the owner or operator of the dam. Pursuant to ECL Sections 71-1109. any owner of a dam who violates such an order may be required to pay a civil penalty of up to $500 for each violation and, in the case of a continuing violation, up to $500 for each day the violation continues.

FINDINGS OF FACT

  1. Chadwick's Dam (Dam Identification No. 115D-5152), also known as the Old Willowvale Bleachery Dam, was originally constructed to supply water to the Willowvale Bleachery. The dam is located three tenths of a mile north of the hamlet of Chadwicks and immediately west of New York State Highway Route No. 8 in the Town of New Hartford, Oneida County on a tributary of Sauquoit Creek.
  2. Chadwick's Dam is an earth embankment structure about 295 feet long and about 41 feet high which forms a reservoir approximately 5 acres in size. It impounds approximately 20 acre-feet of water at normal pool elevation which corresponds to the spillway crest elevation. A concrete spillway approximately 13 feet wide, approximately 2 feet deep and approximately 65 feet long served as the major outfall channel. The west berm contains a deep concrete shaft which contains a valve chamber for a drainpipe. Reportedly, the valve has been operated within the last 5 to 10 years.
  3. Paul T. Massoud purchased the property on which Chadwick's Dam is located from the Utica College Foundation on June 18, 1990.
  4. An inspection of Chadwick's Dam by Carl B. Quance, Regional Floodplain and Dam Safety Coordinator, of the Department's Region 6 Office Staff on May 11, 1992 revealed that the concrete outfall channel had eroded and a large amount of the outfall embankment had sloughed off at the downstream face and was impairing the normal drainage in the downstream channel. Some seepage was evident 15-20 feet below the eroded concrete outfall channel at an apparent clay/sand interface.
  5. An inspection of Chadwick's Dam by Walter Lynick, P.E., of the Department's Central Office Dam Safety Section Staff on June 3, 1992 indicated that the dam was in an unsound condition. Normal flows were eroding the foundation soils beneath the downstream end of the concrete spillway discharge channel resulting in loss of the concrete bottom and sidewalls and erosion of the earthen embankment. The concrete spillway structure was cracked, crumbling and deteriorated. Additional deficiencies observed were structurally cracked headwall at the downstream end of the left drainpipe, inoperable/buried control valves on the drainpipes, deterioration of the top of the concrete wall protruding from the top of the embankment and an overgrowth of trees and brush on and across the entire dam.
  6. Additional inspections of Chadwick's Dam by Mr. Quance were made on June 26, July 13, September 9, October 20, and November 27, 1992. These inspections showed seepage from beneath the downstream lip of the concrete spillway, the development of numerous cracks in the concrete spillway slab, widening of a hole in the concrete spillway slab through which a significant quantity of water flowed under the slab and a continued steady deterioration of the structure. Further inspections were made by Department Regional Office Staff were made on January 6, February 9 and April 13, 1993. A loss of one to two feet of spillway, a loss of 3 feet of east wingwall and continued erosion of the downstream slope of the dam were observed during the inspection on April 13, 1993.
  7. Another inspection of Chadwick's Dam by Mr. Lynick on May 25, 1993 indicated that the dam was in an unsafe condition. Additional portions of the downstream end of the spillway discharge had collapsed and erosion of the earthen embankment was continuing. No remedial measures of any kind had been undertaken.
  8. Another inspection of Chadwick's Dam by Mr. Quance was made on November 30, 1993. This inspection revealed a loss of seven and a half feet of the spillway channel since the June 26, 1992 inspection and that further sloughing of the downstream embankment had also occurred.
  9. Michael R. Stankiewicz, Senior Engineer, of the Department's Central Office Dam Safety Section testified that continued erosion and progressive failure of the spillway channel will ultimately result in failure of the forty foot high dam, causing damage to the structures and railroad downstream of the dam. Mr. Stankiewicz recommended that an attempt to open the valve should be undertaken immediately, that the dam should be assessed by an engineer who should prepare plans for remedial measures (repair, reconstruction or removal) and the remedial measures should then be carried out. He stated that a reasonable time for preparation of the plans would be two to eight weeks and the execution of the remedial measures should be completed during the present or possibly as late as the next construction season, ie. the spring, summer and fall when it is dry enough to do the work and the ground isn't frozen.
  10. Mr. Stankiewicz testified that breaching or removal of the dam would be lest costly than reconstruction or repair of the dam and would provide a permanent remediation. He further testified repair or reconstruction are not distinguishable in this case and if the dam were repaired and retained as an impoundment structure, maintenance would be required to prevent development of additional safety problems.
  11. Chadwick's Dam is classified as an "intermediate" hazard (Class B) dam because failure of the dam may damage several commercial/industrial buildings, a railroad, a mobile home development and a few occupied dwellings, all of which are located immediately downstream within a half mile of the dam.

CONCLUSIONS

  1. Chadwick's Dam is an unsafe dam because of the seepage through and the undermining of the concrete spillway which has partially collapsed and the erosion of the downstream earthen embankment. Unless action is taken to lower the water level by opening the drainpipe valve and/or breaching the dam so that it no longer impounds water, further deterioration of the spillway and erosion of the embankment will continue and the dam will ultimately fail.
  2. Chadwick's Dam has been classified as an "intermediate" hazard dam because failure of the dam will result in damage to mobile homes, commercial/industrial buildings, a railroad and cause significant economic loss. Given the 41 foot height of the dam, if the water level in the impoundment is at or near the spillway elevation when the dam fails, there will be a sudden release of a large volume of water.
  3. There is no information in the record that Chadwick's Dam is used to supply water or now serves any other purpose. Although the dam could be reconstructed, it is obvious that such an endeavor would be costly and well beyond the means of the present owner. As an interim measure, an attempt should be made to open the drainpipe valve to lower the water level behind the dam to reduce the rate of deterioration of the spillway and the erosion of the embankment. In any event, given these circumstances, it is reasonable to conclude that the dam should be breached so that it will no loner impound water.

RECOMMENDATION

I recommend that an Order be issued which requires that:

  1. Within 30 days after service of the Order, the owner of the dam, Paul T. Massoud shall have the drainpipe valve opened to reduce the water level impounded by Chadwick's Dam.
  2. Within 60 days after service of the Order, the owner of the dam, Paul T. Massoud shall submit to the Department plans prepared by a registered professional engineer for the breaching or removal of Chadwick's Dam so that it will no longer impound water.
  3. Within 90 days of receiving written approval of the plans submitted for the breaching or removal of the dam from the Department, the owner of the dam, Paul T. Massoud shall have the plans as approved carried out.
  4. If the owner of the dam, Paul T. Massoud does not comply with the terms of the Order or upon written notification to the Department within 30 days after service of the Order that he is unable to carry out the terms of the Order, the Department Staff shall carry out the terms of the Order and the cost will charged to the owner pursuant to ECL 15-15-0507.
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