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MI Sues Dam Owners After Failures

Thursday, June 18, 2020

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Since the failure of the Edenville and Sanford dams last month, Michigan Attorney General Dana Nessel announced that a new state lawsuit has been filed against dam owners Boyce Hydro LLC and related companies.

What Happened

On May 19, as a result of experiencing record rainfall, emergency responders reportedly went door-to-door to warn residents living along the Tittabawassee River and connected lakes in Midland County, Michigan, about rising flood waters and associated risks it posed to the nearby dam infrastructures.

However, just hours after the first evaluation and clearance to return home, residents were asked to leave a second time once the Edenville Dam officially breached. According to city of Midland spokesperson, Selina Tisdale, evacuations included the towns of Edenville, and parts of Midland and Sanford—where Dow Chemical Co.’s main plant sits on the city’s riverbank.

According to reports, in 2017, the Federal Energy Regulatory Commission began the process of revoking Boyce Hydro’s license Edenville Dam due to non-compliance issues that included spillway capacity and the inability to pass the most severe flood reasonably possible.

However, issues with the dam’s need for a larger spillway are dated as far back as 1999, when the previous owners informed Boyce Hydro during its transfer in 2004. Yet, those fixes were never made as Boyce Hydro claimed to have lacked millions funding to repair the infrastructure, regardless that it had inked a contract with Consumers Energy to sell electricity generated by the dam.

In a September 2018 inspection report, the dam and its spillways were in "fair structural condition" and posed no imminent threat.

At the time of the evacuation, Whitmer estimated that downtown Midland could be under approximately 9 feet of water within 12-15 hours. By Tuesday evening, the Tittabawassee River was reported to be at 30.5 feet high—the area’s flood stage is only 24 feet—and was predicted to crest Wednesday morning at a record high of roughly 38 feet.

Although, if the Sanford Dam were to fail, Kaye added that the water surge would be much higher.

While the Sanford Dam seemed to be holding up, state officials feared that floodwaters could be mixing with containment ponds at the nearby Dow Chemical Co. plant, displacing sediment from a Superfund site—an area contaminated with dioxins. However, Dow reported that the ponds only hold water, adding that the company hadn’t detected any chemical releases.

Regardless, the U.S. Environmental Protection Agency said state officials would evaluate the plant when conditions are favorable. Dow will also be required to assess the Superfund site to determine if any contamination was released.

Michigan Gov. Gretchen Whitmer has since announced that an investigation into the operators of the dams has been launched and that legal recourse would be pursued.

While no injuries or fatalities related to the incident were recounted, the Detroit Free Press reports that the failures caused more than $175 million in damage, with some 2,500 homes and businesses damaged or completely destroyed.

The FERC has also directed that dam-owner Boyce Hydro Power LLC establish an independent investigation team to determine the cause of the damage to Sanford Dam, and that it would reach out to state officials regarding the Edenville Dam. The FERC plans to send an engineer to help with the investigation once the area is safe.

In January, the Four Lakes Task Force announced a $9.4 million deal to buy the Edenville Dam and three others owned by Boyce Hydro by 2022. The task force is owned by Midland and Gladwin counties, and was tasked with repairing and restoring power generation at the dams.

Four months prior to the failure of Edenville Dam, dam safety engineer Luke Trumble with the Michigan Department of Environment, Great Lakes and Energy told consultants that the structure failed to meet state standards and wouldn’t accommodate flood predictions.

Although a final analysis was expected in March, Trumble reported that the dam was deficient even without considering the impact of waves on Wixom Lake.

While both structures will be undergoing an investigation, Detroit Free Press points out that issues with the state’s dam infrastructure runs deeper than lack of maintenance and repair. According to their report, the state of Michigan only has two officials—Trumble and Dan DeVan—to inspect and review dams, in addition to unit supervisor, Mario Fusco.

In 2018, the EGLE was given a budget of only $397,215. The state is reported to have more than 2,500 dams which are inspected on three-, four- or five-year cycles.

The Lawsuit

Filed by the Department of Attorney General on behalf of the Department of Environment, Great Lakes, and Energy and the Department of Natural Resources, in the 30th District Circuit Court in Ingham County, Michigan, state officials accuse Boyce Hydro and its affiliates for the mismanagement of the structures and disregard for public safety.

The listed defendants include Lee Mueller; Boyce Michigan, LLC; Edenville Hydro Property, LLC; Boyce Hydro Power LLC; Boyce Hydro LLC; WD Boyce Trust 2350; WD Boyce Trust 3649; WD Boyce Trust 3650; Stephen B. Hultberg; and Michele G. Mueller.

"For well over a decade the defendants violated federal dam safety laws and put profits ahead of safety—all the while pocketing the money they earned through the use of the public's waterways," reads the suit. "Defendants' malfeasance culminated in the catastrophic failures of the Edenville and Sanford dams.”

According to WWMT-TV Newschannel 3, the state is seeking compensation, civil fines and the cleanup and restoration of damages caused by the dam failures and subsequent flooding.

“This suit seeks to hold the dam owners accountable for the damage they caused and recoup the money the taxpayers have spent responding to the ongoing emergency created by this devastating flood,” Nessel said in a written announcement on the suit.

“...This suit seeks an order requiring the dam owners to pay to remediate the harm they caused, and to take action to ensure it does not occur again.”

Earlier this week, the state ordered Boyce Hydro to complete its emergency inspection report of the Edenville Dam by June 19. Remaining repair efforts have also been ordered to be completed by June 24 for public safety purposes. The inspection reportedly took place on June 10.


Tagged categories: Federal Energy Regulatory Commission (FERC); Flood Barrier; Health & Safety; Health and safety; Infrastructure; Lawsuits; Locks and dams; NA; North America; Project Management; Rehabilitation/Repair; Safety

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