“Dana Nessel recklessly and needlessly risked the lives and fortunes of many mid-Michiganders by prioritizing an ideology over the safety of the people she is sworn to protect,” said Dean Cleary, Michigan Republican Party Research and Rapid Response Director. “Nessel is not a civil engineer and her political intervention in an area outside of her skillset highlights the importance of Michigan moving on from this child-like Attorney General and replacing her with someone who will put Michiganders first.”
Summary
- A report was published this week which concluded that the 2020 midland dam failure was preventable.
- In 2018, Federal regulators revoked the Edenville dam’s license to generate power.
- Michigan then acquired the dam and overruled the federal government and kept the dam operating and changed the rating to “fair” condition.
- The dam broke in May 2020 displacing thousands of residents along the Tittabawassee River.
- The operator of the dam said he kept the water levels high after Nessel sued him in 2019 for lowering the water levels leading to the exposure of thousands of mussels.
- The dam kept the water levels high at the expense of safety to avoid retribution from Nessel over any harm to the mussels in the water.
BACKGROUND
In 2018, Federal Regulators Revoked The Midland Dam’s License To Generate Power – Michigan Overruled The Federal Government Declaring The Dam To Be In “Fair” Condition In 2018, Federal Regulators Revoked The Midland County Dam’s License To Generate Power; State Regulators Took Control Of The Dam And Declared It To Be In “Fair Structural Condition. “After federal regulators pulled the license of a Midland County dam because of the high risk it posed to the public in 2018, it ceded oversight to state regulators. But with less stringent state safety rules to protect people and property, Michigan regulators turned their attention, instead, to the protection of delicate underwater life. Days after feds revoked the dam’s license to generate power, the state assumed oversight, inspected the dam and declared it and its spillways to be in ‘fair structural condition.’” (Beth LeBlanc, “Dangers Of Edenville Dam Failure Evaded State Scrutiny,” The Detroit News, 5/20/20)
Michigan Has Looser Standards On Dam Safety Compared To The Federal Government. “But instead of making residents safer, it placed them in greater danger. The loss of the federal licenses shifted oversight to the states, and Michigan is one of the few state’s whose regulations on dam safety are far less stringent than the federal standards.” (Editorial, “Dam Disaster Enabled By Government Failures,” The Detroit News, 5/23/20)
- Michigan Had: “Less Stringent Capacity Rules And Where Its Alleged Efforts To Maintain Safety Exposed It To State Environmental Regulation.” “When the Federal Energy Regulatory Commission pulled the plug on the Edenville Dam power plant in 2018, it had a perhaps unintended consequence. It put the dam under state regulation, where it was believed to meet less stringent capacity rules and where its alleged efforts to maintain safety exposed it to state environmental regulation.” (Beth LeBlanc, “Dangers Of Dam Evaded Scrutiny,” The Detroit News, 5/20/20)
State Regulators Turned Their Attention To Protection Of Wildlife
“Michigan Regulators Turned Their Attention, Instead, To The Protection Of Delicate Underwater Life.” (“Dangers Of Edenville Dam Failure Evaded State Scrutiny,” The Detroit News, 5/20/20)
In May 2020, The Dam Broke Displacing Thousands Of Residents Along The Tittabawassee River
Flooding In The Midland County Area Caused A Pair Of Dams To Collapse Displacing Thousands Of Residents. “Unprecedented flooding was ongoing Wednesday morning in Midland County, Mich., after a pair of dams collapsed following record rainfall. Thousands of residents have been told to evacuate as floodwaters gush into the communities along the Tittabawassee River, inundating homes and businesses and prompting an emergency declaration from Michigan Gov. Gretchen Whitmer (D). The flooding is threatening a major Dow Chemical plant that lies along the river. That collapse sent floodwaters gushing into Sanford Lake, where a dam has powered the Boyce Hydroelectric Plant. The Sanford Dam succumbed shortly thereafter, the twin reservoirs of water left with no place to drain but into the city of Midland. A flash flood emergency is in effect for downstream areas of Sanford.” (Matthew Cappucci and Andrew Freedman, “Michigan Dams Fail Near Midland; ‘Catastrophic’ Flooding Underway,” The Washington Post, 5/21/20
The Dam Failure Destroyed Homes And Businesses Along The Tittabawassee River And Threatened Operations At The DOW Chemical Plant. “The Edenville Dam failure Tuesday sent a surge of water that overwhelmed the Sanford Dam downstream and caused catastrophic flooding in towns along the Tittabawassee River. More than 10,000 people were evacuated from the region, operations at Dow Chemical were temporarily shut down, and homes and businesses were left waterlogged and muddy.” (Beth LeBlanc, “First Lawsuits Seeking Class-Action Over Edenville Dam Failure Filed In Federal Court,” The Detroit News, 5/23/20)
The Manager Of The Dam Said He Kept The Water Levels High After Attorney General Dana Nessel Sued Him In 2019 For Lowering The Water Levels
Boyce Hydro Plant Manager Lee Mueller Claimed That Nessel Came After Him In 2019 For Lowering The Water Level Claiming It Resulted In The Deaths Of Freshwater Mussels. “Boyce Hydro manager Lee Mueller has said the company lowered levels nearly eight feet in the winters of 2018 and 2019 — even after permit applications were denied — because it otherwise could not complete the proper maintenance needed in the winter months to protect both workers and people downstream. Federal regulators had allowed the decrease, at least temporarily, in 2018 to allow for maintenance on the Secord Dam upstream, but there was no such federal allowance in 2019. The Attorney General Office’s statement on Saturday said the environmental department’s May 1 lawsuit was meant to address ‘past illegal lowering’ in the winters of 2018 and 2019 that resulted in the deaths of freshwater mussels and to avoid future dramatic consequences.” (Beth LeBlanc, “Nessel Disputes Claim That State Litigation Played Role In Edenville Dam’s Failure,” The Detroit News, 5/23/20)
Mueller Claimed That He Drew Down Water Levels To Avoid Icy Conditions That Could Endanger Workers. “Mueller alleged in an April federal lawsuit that he made unauthorized drawdowns from Wixom Lake in the winters of 2018 and 2019 in part to avoid icy conditions that could endanger workers but also to protect folks downstream from what federal regulators deemed a real risk of a catastrophic flood from the dam.” (Beth LeBlanc, “Did State Pressure To Keep Wixom Lake Level High Contribute To Edenville Dam’s Failure?” The Detroit News, 5/21/20)
Therefore, The Dam’s Operator Kept The Water Levels High At The Expense Of Safety To Avoid Retribution From Nessel Over Any Harm To Mussels In The Water
The Dam Operators Claimed They Were Subjected To Pressure From The State Government To Keep The Water Levels High At The Expense Of Safety. “Boyce Hydro has portrayed the negotiations with the state as a sign of alleged extortion and purported proof of the pressure it was under to raise Wixom Lake water levels in April at the expense of safety. The company filed the emails Monday in the Western U.S. District Court of Michigan, revealing what was supposed to be confidential settlement negotiations among the parties.” (Beth LeBlanc, “Emails: State, Boyce Haggled Over Mussels Since January,” The Detroit News, 6/17/20)
Nessel Blamed The Plant For Killing Thousands Of Mussels When He Lowered The Water Levels. “Nessel in a May state lawsuit said the illegal drawdowns were much larger than what was permitted by federal regulators and that they exposed thousands of freshwater mussels that later died.” (Beth LeBlanc, “Did State Pressure To Keep Wixom Lake Level High Contribute To Edenville Dam’s Failure?” The Detroit News, 5/21/20)
- Nessel’s Office Denied Pressuring Boyce Hydro Power To Keep Water Levels High. “Nessel in a May state lawsuit said the illegal drawdowns were much larger than what was permitted by federal regulators and that they exposed thousands of freshwater mussels that later died. On Thursday, Jarvi said Mueller wasn’t drawing down water in the 2018 and 2019 winters to preserve the public safety of those downstream, but because he didn’t want to spend the money needed to keep his equipment maintained during the winter. EGLE denied his permit application to lower levels because the cost to keep up the equipment didn’t outweigh environmental and natural resources concerns, Jarvi said. Boyce made the drawdown anyway. The company claimed in a lawsuit that it was following its previous federal regulators guidance to draw down the water to inspect the spillways. A September 2018 federal order approved a temporary drawdown for that purpose on the condition that Mueller would ‘refill the reservoir at the conclusion of spillway inspections.’ ‘They were concerned about winter ice build-up, not a spring flood,’ Jarvi said. ‘They wanted to lower the lake level during the winter months because they did not want to spend the money on the equipment, safety measures, and staff used by the other hydroelectric dams in Michigan – such as heated power washers, bubblers, on-call workers – to fight ice build-up.’” (Beth LeBlanc, “State Denies Pushing Raised Water Levels Before Dam Failure,” The Detroit News, 5/21/20)
In August 2020, The Owner And Operator Of The Dam Filed For Chapter 11 Bankruptcy. “The owner and operator of the two dams that failed May 19, causing catastrophic flooding in Midland County and prompting a slew of lawsuits, has filed for Chapter 11 bankruptcy protection. Boyce Hydro Power LLC’s July 31 filing with U.S. Bankruptcy Court’s Eastern District of Michigan lists among its 20 largest unsecured creditors dozens of litigants in at least nine lawsuits, including class-action suits, filed in the wake of the dam failures and flooding. Some 2,500 homes and businesses were damaged or destroyed, and damages are estimated at more than $175 million. The company also is being sued by the state of Michigan over the flooding. Chapter 11 bankruptcy typically involves a corporation or partnership proposing a plan to reorganize to keep its business alive and pay creditors over time, according to the U.S. Courts Administrative Office.” (Keith Matheny, “Owner Of Failed Michigan Dams Files For Bankruptcy,” Detroit Free Press, 8/6/20)