Michigan Attorney General files lawsuit against Boyce Hydro for dam failure

Michigan’s Department of Attorney General has filed a lawsuit seeking compensation, civil fines and the cleanup and restoration of damages caused by Boyce Hydro’s negligence in the failure of the Edenville and Sanford dams last month.

The department filed the suit on behalf of the Department of Environment, Great Lakes, and Energy (EGLE) and Department of Natural Resources (DNR).

According to a press release, the eight-count suit will be followed by a motion to compel Boyce Hydro to immediately comply with a state order to fully inspect potentially dangerous cracks and erosion in a damaged portion of the Edenville Dam that is still standing to determine what steps must be taken to protect public safety. It also compels Boyce Hydro to repair damages to Michigan’s natural resources, clean up discharges of debris and hazardous materials caused by the dam failures, and pay civil fines and damages related to the disaster.

“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,” said Michigan Attorney General Dana Nessel. “We know the owners of the dam, with their long history of neglect, are responsible for the dam’s failure. We can see already the devastating results of their inaction. 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.”

Federal regulators identified deficiencies at the dam in 1993. The Attorney General says those deficiencies were well-known to Boyce Hydro when they purchased the dam in 2004. Boyce Hydro repeatedly failed to comply with orders by the Federal Energy Regulatory Commission (FERC) to upgrade the dam through 2018, when the commission revoked the company’s permit to generate hydroelectric power.  

The dam’s spillway capacity was just one of those deficiencies. “Thirteen years after acquiring the license for the project, the licensee has still not increased spillway capacity leaving the project in danger of a [probable maximum flood] event,” FERC wrote in a 2017 compliance order. “The licensee has shown a pattern of delay and indifference to the potential consequences of this situation. A situation that must be remedied in order to protect life, limb, and property.”

The license revocation shifted regulatory oversight to the state of Michigan in late 2018. The state was working to ascertain the dam’s compliance with state safety standards (which differ from federal standards) and to facilitate the transfer of ownership to a group of local stakeholders. Those stakeholders, organized as the Four Lakes Task Force, had a plan to upgrade the dam’s spillway capacities, strengthen its embankment, and make other repairs so it could regain the federal hydroelectric generating license. 

The transfer of the dam to the Four Lakes Task Force was imminent when the failure occurred, and, the Attorney General says, was a much faster path to improve safety than attempting to directly compel the private owners through regulatory means to undertake the repairs. The state was providing technical assistance and a $5 million grant to assist in the repairs and the transfer of ownership.

Damage to lives, property, and the natural resources of the state are extensive and are still being tallied.

“The wetlands, wildlife and aquatic organisms that are the base of a healthy ecosystem have been destroyed,” said Dan Eichinger, DNR director.

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