Dams Safety Regulation 2019

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Dams Safety Regulation 2019.

2 Commencement

This Regulation commences on 1 November 2019 and is required to be published on the NSW legislation website.

3 Definitions

(1)  In this Regulation—

AS ISO 55001:2014 means Australian Standard AS ISO 55001:2014, Asset management—Management systems—Requirements.

competent person means, for a person exercising a function in relation to a dam, a person who—

(a)  has acquired through training, qualification and experience substantial knowledge and skills in dam design or risk analysis in relation to that type of dam, and

(b)  is—

(i)  registered under a law that provides for the registration of professional engineers, or

(ii)  a member (or is qualified to be a member) of Engineers Australia with the status of Chartered Professional Engineer, or

(iii)  entered on the National Professional Engineers Register administered by the Institution of Engineers Australia, or

(iv)  the holder of professional qualifications in a relevant speciality or is registered in a relevant speciality by an Australian professional organisation.

consequence category means a consequence category referred to in clause 6(1).

Consequence Category Methodology means the Declared Dams Consequence Category Assessment and Determination Methodology published in Gazette No 137 of 8 November 2019.

contents of a dam means the material impounded by a dam and does not include any part of the dam.

dam safety management system for a dam means the dam safety management system established under Part 5 for the dam.

emergency exercises, in respect of a declared dam, means exercises undertaken in preparation for a failure of the dam.

failure of a dam means the uncontrolled release of the contents of the dam or the dam ceasing to perform its functions.

Note—

Examples of dam functions may be the supply of water or preventing the release of hazardous substances.

relevant speciality means any of the following—

(a)  engineering geology,

(b)  geotechnical engineering,

(c)  hydraulics,

(d)  hydrology,

(e)  seismology,

(f)  structural analysis,

(g)  any other speciality relating to dam design that materially affects dam safety.

the Act means the Dams Safety Act 2015.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2)  Notes included in this Regulation do not form part of this Regulation.

cl 3: Am 2020 (124), Sch 1[1]–[3].

Part 2 Declaration of dams

4 Declared dams

(1)  For the purposes of section 5(2) of the Act, a dam or proposed dam in the following types or classes may be declared to be a declared dam—

(a)  a dam having a dam wall that is more than 15 metres high,

(b)  a dam that Dams Safety NSW is reasonably satisfied would, if there were to be a failure of the dam—

(i)  cause a major or catastrophic level of severity of damage or loss, or

(ii)  endanger the life of a person,

(c)  a proposed dam that Dams Safety NSW is reasonably satisfied will become a dam referred to in paragraph (a) or (b),

(d)  a dam or proposed dam that is a prescribed dam within the meaning of the Dams Safety Act 1978 immediately before the repeal of that Act.

(2)  In assessing whether a failure of a dam would cause damage, loss or danger referred to in subclause (1)(b)(i) or (ii), Dams Safety NSW is to have regard to the Consequence Category Methodology.

cl 4: Am 2020 (124), Sch 1[4] [5].

5 Preliminary assessment

(1)  Dams Safety NSW may direct the owner of a dam or a proposed dam to conduct a preliminary assessment of the dam to determine whether it is of a class that may be declared to be a declared dam.

(2)  The direction may specify the following—

(a)  the manner in which the assessment is to be carried out,

(b)  the form in which a report setting the result of the assessment is to be provided to Dams Safety NSW,

(c)  the time in which the assessment is to be completed and the report provided.

(3)  An owner of a dam or a proposed dam who is given a direction must comply with the direction.

Maximum penalty—50 penalty units.

Part 3 Consequence category of dam

6 Classification of dams by consequence category

(1)  Dams Safety NSW is to classify each declared dam as being in one of the following consequence categories—

(a)  extreme consequence,

(b)  high A consequence,

(c)  high B consequence,

(d)  high C consequence,

(e)  significant consequence,

(f)  low consequence,

(g)  very low consequence.

(2)  The classification may be made when declaring a dam or proposed dam to be a declared dam or at a later time.

(3)  Dams Safety NSW may reclassify a declared dam at any time.

7 Assessment of consequence category

(1)  The owner of a declared dam must ensure that the consequence category of the dam is assessed by a competent person.

(2)  The assessment must be carried out—

(a)  within 6 months after the dam is declared to be a declared dam, and

(b)  at least once every 15 years, and

(c)  as soon as practicable after any of the following occurring that is likely to change the consequence category of the dam—

(i)  a modification being made to the dam,

(ii)  any significant change in the number of persons likely to be affected by a failure of the dam,

Note—

For example, a large residential development in the dam break zone.

(iii)  a change (other than a minor change) in the severity of damage and loss that is likely to occur should there be a failure of the dam, and

(d)  if the owner of the declared dam is required by notice in writing to do so by Dams Safety NSW, within the time specified in that notice.

(3)  The assessment must be carried out using the Consequence Category Methodology.

(4)  If the assessment concludes that the dam is in any of the following consequence categories, the assessment must be reviewed by a competent person who has not been involved in the assessment process—

(a)  extreme consequence,

(b)  high A consequence,

(c)  high B consequence,

(d)  high C consequence.

(5)  The owner of the dam must ensure that a report setting out the findings of the assessment and the reasons for those findings is provided to Dams Safety NSW as soon as practicable after the assessment is completed.

8 Part is safety standard

This Part is prescribed as a standard for the purposes of section 14 of the Act.

Part 4 Plans

9 Operations and maintenance plans

(1)  An operations and maintenance plan under section 16(1) of the Act for a dam must set out the following—

(a)  the operating procedures for the dam with a concise description of the procedures and limits (operator controls) of plant and equipment used in the operation of the dam,

(b)  details of each circumstance in which an alarm will be triggered in respect of the dam and the response and reporting protocols that will occur when that alarm is triggered,

(c)  the maintenance (comprising corrective and preventive) that will be carried out on the dam, the times at which that maintenance will be carried out and who is responsible for the maintenance,

(d)  the procedures for reporting incidents in respect of the dam,

(e)  the procedures to ensure public safety in respect of the dam during its day to day operation,

(f)  the security measures that are in place in respect of the dam.

(2)  The operations and maintenance plan must—

(a)  set out how the matters in subclause (1) will apply in normal, abnormal and extreme loading operation conditions, and

(b)  be appropriate to the size and complexity of the dam and its associated structures and systems.

(3)  The operations and maintenance plan may include any other matter that the dam owner considers to be relevant to the operation and maintenance of the dam.

(4)  The operations and maintenance plan for a dam categorised as significant consequence, low consequence or very low consequence must be updated at least once every 5 years.

Note—

Section 16 (3) of the Act requires all other operations and maintenance plans to be updated on an annual basis.

(5)  The owner of a declared dam must, if required by notice in writing to do so by Dams Safety NSW, provide Dams Safety NSW with a copy of the operations and maintenance plan within the time, and in the form, specified in that notice.

Maximum penalty (subclause (5))—50 penalty units.

10 Emergency plans

(1)  An emergency plan under section 17(1) of the Act for a dam must set out the following—

(a)  the consequence category of the dam,

(b)  details of the material contained by the dam,

(c)  a description of the circumstances that could cause a failure of the dam and the likely consequences of the failure including, for a dam categorised as extreme or high consequence—

(i)  details of all credible modes of dam failure, and

(ii)  details of the persons, property and infrastructure that are likely to be impacted in each scenario and the environmental damage that is likely to occur,

(d)  the procedures to be followed by the owner of the dam and staff in the event of an emergency that may cause a failure of the dam, including the following—

(i)  a description of the emergency warning systems and how they operate,

(ii)  the different levels of emergency alerts (being levels that are consistent with those used by the State Emergency Service), the triggers for those alerts and the responses that are to occur when those alerts are triggered,

(iii)  the procedures for alerting emergency services organisations of the emergency,

(iv)  the persons who may be at risk if there is a failure of the dam,

(v)  the persons responsible for exercising functions in the event of an emergency and the contact details for those persons,

(e)  details of the emergency exercises to be undertaken.

(2)  The emergency plan may include any other matter that the dam owner considers to be relevant to emergencies at the dam.

(3)  For the purposes of section 17(3) of the Act, the emergency plan must be updated at least once every 5 years subject to subclauses (4) and (5).

(4)  The emergency plan must be updated to take account of the following changes within 30 days after the change occurs—

(a)  a change to the consequence category of the dam,

(b)  a significant change, since the consequence category of the dam was last determined, to the number of persons who would be put at risk if there were to be a failure of the dam,

(c)  a change to the emergency management arrangements.

(5)  The emergency plan must be routinely reviewed, at least annually, to ensure that a change to the contact details of a person responsible for exercising functions in the event of an emergency is updated as soon as practicable after the change.

(6)  Dams Safety NSW may direct the owner of a declared dam to update the emergency plan for the dam within a time specified in the direction.

(7)  The owner of a declared dam must not fail to comply with a direction under this clause.

Maximum penalty—50 penalty units.

(8)  The owner of a declared dam must provide a copy of the emergency plan to Dams Safety NSW and the State Emergency Service in a form approved by Dams Safety NSW as soon as reasonably practicable after the plan is prepared or updated.

Maximum penalty—10 penalty units.

11 Guidance material

(1)  Dams Safety NSW may issue guidance material for the preparation of plans under this Part.

(2)  In preparing a plan under this Part, the owner of a declared dam is to have regard to any relevant guidance material issued by Dams Safety NSW and made available on its website.

Part 5 Dam safety management system

12 Must establish and implement dam safety management system

(1)  The owner of a declared dam must establish and implement a dam safety management system for the dam in accordance with this Part.

(2)  The dam safety management system must be designed to be used by the owner of the dam as the primary means of ensuring, so far as is reasonably practicable, the safety of persons and property is not put at risk from the dam.

(3)  The dam safety management system must provide a comprehensive and integrated system for the management of all aspects of foreseeable risks in relation to the failure of the dam that addresses all aspects of the life cycle of the dam, including the design, construction, operation, maintenance and decommissioning of the dam.

(4)  The dam safety management system must comply with subclause (3) to the extent appropriate to the dam having regard to—

(a)  the nature, complexity and location of the dam, and

(b)  the risks associated with the dam.

13 Content of dam safety management system document

(1)  The dam safety management system document for a dam must set out the following—

(a)  the procedures for managing risks in accordance with clause 14,

(b)  the procedures for reporting incidents in accordance with clause 19,

(c)  the procedures for conducting a safety review in accordance with clause 20,

(d)  the procedures for notifying changes to the dam in accordance with clause 21,

(e)  the procedures for ensuring compliance with AS ISO 55001:2014,

(f)  the procedures for review of the matters in paragraphs (a)–(e),

(g)  the resources that will be applied for the effective implementation and use of the dam safety management system.

(2)  The dam safety management system document must—

(a)  be in electronic form, and

(b)  contain a level of detail of the matters required to be set out in the document that is appropriate to the dam, having regard to—

(i)  the nature, complexity and location of the dam, and

(ii)  the risks associated with the dam, and

(c)  so far as is reasonably practicable, be set out and expressed in a way that is readily understandable by persons who use it.

14 Risk management framework

(1)  The owner of a declared dam must, as part of the dam safety management system for the dam, establish a risk management framework.

(2)  A risk management framework must include the following components—

(a)  a hazard identification process,

(b)  a risk analysis process,

(c)  a risk evaluation process,

(d)  a risk treatment process.

(3)  The hazard identification process must involve the identification of all foreseeable hazards adversely affecting the safety of the dam including, but not limited to, the following—

(a)  flood events including the contents of the dam rising higher than the wall of the dam and the performance of the spillways,

(b)  seismic events including the impact of the event on the performance of the dam or the stability of the reservoir rim,

(c)  internal erosion including the effects this may have on piping through the dam, the foundation of the dam or structures abutting the dam,

(d)  seepage of the contents of the dam through the wall of the dam,

(e)  the stability of the dam through all possible conditions,

(f)  sabotage or vandalism,

(g)  fire,

(h)  mechanical, electrical or automated system failure that may result in an uncontrolled release of the contents of the dam,

(i)  human factors.

(4)  The risk analysis process must employ an evidence based quantitative methodology that identifies and analyses the following—

(a)  the potential failure modes of the various parts of a system in its operating context,

(b)  the effects those potential failures may have on the system,

(c)  how to avoid those potential failures,

(d)  how to mitigate the effects of those potential failures on the system.

(5)  The risk evaluation process must employ risk-informed decision making, being a systematic process in which the results of risk analysis and other major considerations influencing the safety of a dam are taken into account in making decisions relating to the safety of the dam.

(6)  The risk treatment process must identify risk reduction measures that are to be implemented to eliminate or reduce risks, but only in so far as is reasonably practicable.

(7)  In determining whether it is reasonably practicable to implement a risk reduction measure, a cost benefit analysis may be carried out taking into account all relevant matters including the following—

(a)  the likelihood of the risk occurring,

(b)  the degree of harm that may result from the risk,

(c)  the availability and suitability of the relevant risk reduction measure,

(d)  the cost of the relevant risk reduction measure.

(8)  Dams Safety NSW may, on application by an owner of a dam, exempt the owner of the dam from the requirements of subclauses (4), (6) and (7) in relation to the dam if satisfied that the dam is not complex.

(9)  The exemption may be subject to conditions, including conditions that require the owner of the dam to use a different risk evaluation process or risk treatment process.

15 Assessment of societal and individual risk rating

(1)  The owner of a declared dam (other than a proposed dam) must use the risk management framework under clause 14 to produce a written report on all foreseeable risks to the dam—

(a)  at least once every 5 years, and

(b)  if a major change is proposed to be made to the dam, at the time that the change is being designed that takes into account the proposed change, and

(c)  if required to do so by Dams Safety NSW.

(2)  The owner of a declared dam that is a proposed dam must use the risk management framework under clause 14 to produce a written report on all foreseeable risks to the dam at the time that the dam is being designed.

(3)  In preparing a report under this clause, the dam owner must also set out in the report—

(a)  the societal risk rating and the highest individual risk rating of the dam calculated in accordance with the Societal and Individual Risk Rating Methodology published in Gazette No 137 of 8 November 2019, and

(b)  an explanation as to any assumptions made in making that calculation.

(4)  If the societal risk rating or highest individual risk rating for a dam is higher than the following (the safety threshold), the dam owner must forward a copy of the report to Dams Safety NSW as soon as practicable after the report is produced—

(a)  societal risk rating for an existing dam (except as provided by paragraph (b))—0.001,

(b)  societal risk rating for a proposed dam or for an existing dam that is to be subject to a major change—0.0001,

(c)  individual risk rating for an existing or proposed dam—0.0001.

(5)  Dams Safety NSW may direct the owner of a dam for which the societal risk rating or highest individual risk rating is above the safety threshold to take specific steps within a specified time to ensure that the rating is reduced to the safety threshold or lower.

(6)  More than one direction may be given to the owner of a dam under this clause.

(7)  The owner of a dam who is given a direction under this clause must not fail to comply with the direction.

Maximum penalty—50 penalty units.

(8)  In this clause,

individual risk rating for a dam means the amount by which the risk to the life of a person is increased because of the dam.

societal risk rating for a dam means an amount determined by multiplying the estimated probability of a failure of the dam in a given year by the estimated number of deaths resulting from that failure.

cl 15: Am 2020 (124), Sch 1[6].

16 Maintenance

The owner of a declared dam must maintain the dam safety management system for the dam so that the dam safety management system remains effective.

17 Reviews

The owner of a declared dam must ensure that the dam safety management system for the dam is reviewed annually to ensure it remains effective.

18 Part is safety standard

This Part (other than clause 15(7)) is prescribed as a standard for the purposes of section 14 of the Act.

Part 6 Other safety requirements

19 Incident reporting

(1)  The owner of a declared dam must ensure that the following incidents occurring at, or in relation to, the dam are reported to Dams Safety NSW in accordance with this clause—

(a)  the failure of the dam,

(b)  an incident that causes the owner of the dam to become aware of the likely failure of the dam,

(c)  an incident that results in the death or serious injury of a person or that results in significant damage to property or the environment,

(d)  a significant failure or inadequacy of a component of the dam safety management system that could potentially have caused an incident referred to in paragraph (c),

(e)  a suspected terrorist attack,

(f)  an incident relating to dam safety that is reasonably likely to cause concern to members of the public,

(g)  any change in the dam or its surrounds that is abnormal and could indicate an increased risk of the failure of the dam,

(h)  for a dam associated with a mine, an incident that results in a significant amount of groundwater entering the mine,

(i)  a failure of a control system that had the potential to—

(i)  endanger the safe operation of the dam, or

(ii)  endanger the safety of a person, or

(iii)  cause damage to property or the environment, or

(iv)  cause an uncontrolled release of the contents of the dam,

(j)  a security incident (including an act of trespass, sabotage, vandalism or theft) that affected, or had the potential to affect, the safety of the dam.

(2)  An initial report of an incident referred to in subclause (1)(a)–(f) must be given in oral form as soon as possible after the incident.

(3)  A written report of an incident in a form approved by Dams Safety NSW must be given to Dams Safety NSW no later than 72 hours after the incident even if an oral report of the incident has already been given.

20 Safety review

(1)  The owner of a declared dam must ensure that a safety review to assess the overall safety of the dam is undertaken by a competent person.

(2)  A safety review must be carried out at least once every 15 years or as soon as practicable after any of the following occurs—

(a)  a deficiency or weakness is identified in the dam,

(b)  there is a change (other than a minor change) to the accepted technology or methods used in one of the relevant specialities or in the design criteria for dams,

(c)  the consequence category of the dam is changed,

(d)  Dams Safety NSW gives written notice to the owner of the dam requiring a safety review of the dam to be carried out.

(3)  Dams Safety NSW may require an owner of a declared dam to conduct a safety review only if Dams Safety NSW is of the opinion that risks to the dam have not been adequately assessed or mitigated.

(4)  The safety review must take into account relevant developments in any of the relevant specialities or in the design criteria for dams that have occurred since the safety review was last carried out for the dam.

(5)  The safety review must also include the preparation of a report in accordance with clause 15.

(6)  A safety review of a dam in any of the following consequence categories must be independently reviewed by a competent person who has not been involved in the safety review process—

(a)  extreme consequence,

(b)  high A consequence,

(c)  high B consequence,

(d)  high C consequence.

(7)  The owner of a dam who is given written notice by Dams Safety NSW requiring the owner to provide it with a copy of the safety review must comply with the requirement within the time (if any) specified in the notice.

21 Notification of significant changes to dam

The owner of a declared dam must, before any significant change is made to the configuration of the dam that may affect the safety of the dam, notify Dams Safety NSW in writing of the proposed change.

22 Emergency exercises

(1)  The owner of a declared dam must ensure that emergency exercises are undertaken by staff who are involved in the operation of the dam at least once every 3 years.

(2)  The exercises maybe undertaken as a theoretical classroom exercise and may relate to more than one dam on a site.

(3)  In addition, for dams classified as being in any of the following categories, the owner of a declared dam must ensure that practical emergency exercises are undertaken at least once every 5 years—

(a)  extreme consequence,

(b)  high A consequence,

(c)  high B consequence,

(d)  high C consequence.

(4)  As far as is reasonably practicable, the practical emergency exercises should involve relevant agencies identified in the emergency plan for the dam.

23 Certain work to be carried out by person subject to quality management system

(1)  The owner of a declared dam must ensure that work involving designing, constructing, commissioning or decommissioning the dam or a major modification to the dam is only carried out—

(a)  in accordance with the risk management framework forming part of the dam safety management system for the dam, and

(b)  by a person who is subject to a quality management system.

(2)  The quality management system must be in accordance with Australian and New Zealand Standard AS/NZS ISO 9001:2016, Quality Management Systems—Requirements.

24 Competent person must check work involving dam design

The owner of a declared dam that is classified as being in any of the following categories must ensure that work involving designing the dam (or any major modification to the dam) is reviewed by a competent person who has not been involved in the work and is independent of any person who has carried out the work—

(a)  extreme consequence,

(b)  high A consequence,

(c)  high B consequence,

(d)  high C consequence.

25 Part is safety standard

This Part is prescribed as a standard for the purposes of section 14 of the Act.

Part 7 Miscellaneous

26 Dams safety standards report to be provided to Dams Safety NSW

The owner of a declared dam must provide a copy of the report published under section 14(4) of the Act to Dams Safety NSW in a form approved by Dams Safety NSW as soon as practicable after the report is published.

27 Records

(1)  For the purposes of section 15(3) of the Act, the owner of a declared dam must keep the following records in respect of the dam—

(a)  consequence category assessments undertaken under clause 7,

(b)  a copy of the operations and maintenance plan, including details of activities carried out under that plan,

(c)  a copy of the emergency plan, including details of reviews of that plan,

(d)  a copy of the dam safety management system document,

(e)  records of the training undertaken by members of staff in respect of the procedures set out in the dam safety management system document,

(f)  records of internal audits of the dam safety management system,

(g)  records of the activities undertaken to improve the dam safety management system including any corrective actions taken in compliance with AS ISO 55001:2014,

(h)  records of any monitoring, measuring, analysis or evaluation undertaken in relation to the dam safety management system,

(i)  records of the reviews of the dam safety management system,

(j)  records of the activities undertaken as part of the risk management framework under clause 14,

(k)  records of incidents reported under clause 19,

(l)  records of the safety reviews undertaken under clause 20,

(m)  records of notifications given under clause 21,

(n)  records of emergency exercises undertaken under clause 22,

(o)  records of any directions given by Dams Safety NSW,

(p)  physical structure surveys, including any accompanying plans and reports,

(q)  design drawings and related calculations,

(r)  maps of the dam and its surrounds,

(s)  as-built drawings,

(t)  repair and modification records,

(u)  any hydrological, geotechnical engineering, engineering geology or structural analysis report that the owner of the dam has commissioned for the dam.

(2)  The owner of a declared dam may, with the authorisation of Dams Safety NSW, dispose of any records required to be kept under this clause that are no longer relevant.

(3)  Dams Safety NSW may give its authorisation under this clause to a class of records or to a class of owners, or both.

cl 27: Am 2020 (124), Sch 1[7].

28 Authorised officers

For the purposes of section 25(1)(c) of the Act, a person who Dams Safety NSW is reasonably satisfied has expertise in the safety of dams may be appointed as an authorised officer.

29 Directions to be in writing

A direction to an owner of a dam or a proposed dam that is referred to in this Regulation is to be given to the owner in the form of a written notice.

30 Savings and transitional provisions consequent on commencement of Act

(1)  For the purposes of clause 7(1)(a) and (2)(a) of Schedule 2 to the Act, the prescribed date is the day occurring 2 years after the commencement of the Act.

(2)  For the purposes of clause 7(1)(b) and (2)(b) of Schedule 2 to the Act, the prescribed date is the day occurring 6 months after the commencement of the Act.

(3)  Clauses 20, 22, 23 and 26 and Part 5 of this Regulation do not have effect until 2 years after the commencement of the Act.

cl 30: Am 2020 (124), Sch 1[8].

Schedule 1 Penalty notice offences

1 Application of Schedule

(1)  For the purposes of section 46 of the Act—

(a)  each offence created by a provision specified in this Schedule is an offence for which a penalty notice may be issued, and

(b)  the amount payable for the penalty notice is the amount specified opposite the provision.

(2)  If the provision is qualified by words that restrict its operation to limited kinds of offences or to offences committed in limited circumstances, the penalty notice may be issued only for—

(a)  that limited kind of offence, or

(b)  an offence committed in those limited circumstances.

Column 1	Column 2	Column 3
Provision	Penalty—corporations	Penalty—individuals
Offences under the Act
Section 14(3)	$3,000	$500
Section 15(2)	$1,000	$250
Section 15(3)	$500	$200
Section 16(1)	$3,000	$500
Section 17(1)	$3,000	$500
Section 18(3)	$3,000	$500
Section 19(3)	$3,000	$500
Section 20(2)	$3,000	$500
Section 21(6)	$3,000	$500
Section 37(6)	$2,000	$500
Section 38(4)	$2,000	$500
Offences under this Regulation
Clause 5(3)	$1,000	$250
Clause 9(5)	$500	$200
Clause 10(7)	$1,000	$250
Clause 10(8)	$500	$200
Clause 15(7)	$1,000	$250