Nessel: Midland dam owners knew of flood risk in 2010, neglected repairs - Detroit News

Nessel: Midland dam owners knew of flood risk in 2010, avoided repairs

Nessel: Midland dam owners knew of flood risk in 2010, neglected repairs
Beth LeBlanc

The owners of a Midland dam subject to a catastrophic failure during a May 2020 flood were aware of a key defect in the structure about 10 years earlier but failed to make repairs or notify the state as required, Attorney General Dana Nessel’s office is alleging.

The information, unearthed during months of discovery in a federal lawsuit, was included in a motion from Nessel’s office requesting a federal judge find the dam owners in violation of state environmental law in relation to their upkeep of the Edenville Dam.

“Boyce Hydro failed to repair a known defect of its dam, and the dam failed in exactly the way Boyce Hydro predicted it would,” according to the filing made on Thursday. “It could have fixed the defect but chose instead to pursue expensive extracurricular activities unrelated to dam safety.”

The information on the dam’s defect was contained in emails that Boyce Hydro's Lee Mueller “tried to keep secret” in a months-long federal court fight seeking to establish Boyce Hydro’s culpability so the company’s remaining assets post-bankruptcy go to community members affected by the flood, according to Nessel's office.

Heavy rainfall fell over a period of days in May 2020 and preceded the dam failure. On May 19, 2020, Wixom Lake, the lake impounded behind the Edenville Dam, eventually reached about 5.5 feet above normal pool level. The east embankment of the dam gave way, nearly emptying Wixom Lake and flooding downstream dams and communities.

Boyce Hydro failed to keep up with federal and state regulations for about two decades preceding the failure — so much so that federal regulators eventually stripped the dam of its hydroelectric license in 2018. But the information uncovered in Thursday’s filing appears to show the company knew as early as 2010 of the exact risk of a failure like the one that occurred in May 2020.

“Boyce Hydro acknowledged that it knew by 2010 that the east embankment could fail if the water level behind it got too high,” Thursday’s filing said.

The filing said there’s no indication Boyce shared the information with the Federal Energy Regulatory Commission or with the state after it took over jurisdiction of the dam in September 2018.

Boyce Hydro LLC and Boyce Hydro Power LLC filed for Chapter 11 bankruptcy in August 2020 in federal bankruptcy court in the Eastern District of Michigan. Boyce Hydro's Lee Mueller could not be reached for comment.

In the years after, the filing said, the dam owner made repair plans but never carried out those fixes that could have prevented the 2020 breach, such as an upstream sheet pile cutoff wall, a downstream buttress or an increase of spillway capacity. The company’s dam safety engineer in 2017 “resigned in protest” when repair plans continued to be changed and delayed, the filing said.

Instead of fixing the issue, the filing said, "Boyce Hydro spent its time and money on non-dam-safety related projects, such as attempting to hold a music festival, designing a marina and RV park, operating a sawmill, and trying to develop a residential neighborhood.”

When federal regulators revoked the dam’s hydroelectric license and the dam reverted to state control in 2018, Mueller believed Michigan law didn’t require him to take action on the Edenville Dam’s spillway capacity, the filing said. There was no action taken to fix the issue identified in 2010.

On May 19, 2020, historic rains raised Wixom Lake to record levels and drenched soil in the east embankment until the soil essentially became liquified and gave way in a process called “ static liquefication.”

“Mr. Mueller confirmed that the section of the east embankment that failed was the section of the embankment that Boyce Hydro identified in 2010 as potentially not being able to withstand the pressure of an elevated water level,” the report said.

The water released from the east embankment overwhelmed the Sanford Dam downstream, destroying the Village of Sanford, flooding buildings, causing $21 million in damage to the fishery and about $91 million to the freshwater mussel ecosystem, the filing said.

The dam’s failure, Nessel’s office said, was one of the worst in Michigan history and was an “entirely preventable disaster.”

The state generally has been successful in civil litigation involving Boyce and community members who felt Michigan regulators could have done more to prevent the dam failure.

As recently as four months before the Edenville Dam failure, the state found the structure didn’t meet flooding capacity standards at the state level and was preparing a final report when the dam failed.

The flood was preceded by skirmishes between the state and Boyce Hydro over the company’s requests to lower the levels of Wixom Lake so as to avoid winter maintenance it said it couldn't afford. Just before the flooding, the state sued Boyce Hydro over the death of freshwater mussels after it defied state orders and lowered lake levels.

But a later review by a team of independent engineers showed that, even if Wixom Lake had been kept at lower levels, it would have resulted in about a two and a half inch difference in peak water levels and was “unlikely to have prevented the failures.”

eleblanc@detroitnews.com