The Michigan Department of Attorney General, along with the Department of Energy, Great Lakes and the Environment (EGLE) and the Department of Natural Resources (DNR), Tuesday announced they secured a victory following action taken by the court to further correct the false narrative around the 2020 failure of the Edenville Dam.
The U.S. District Court, Western District, issued a discovery order to Lee Mueller—the person responsible for the Edenville Dam at the time of its failure—in May 2022. Despite the order, Mueller withheld, and continues to withhold, documents and communications relevant to the ongoing legal action filed by the Department of Attorney General on behalf of EGLE and the DNR. On September 30, the court sanctioned Mueller for his refusal to obey the court’s order and established the truth of seven facts.
The following facts are now established in the State’s lawsuit against Mueller and Boyce Hydro:
1. Following the May 19, 2020 breach of the Edenville Dam, Lee and Michele Mueller worked with attorneys Dan Curth and Larry Kogan to prepare a response (Public Response) to questions about the dam.
2. The Public Response included the preparation of press releases, the transmission of emails, and the conducting of interviews, which were distributed or communicated to members of the media primarily by Dan Curth and Larry Kogan.
3. The Public Response included statements that were not true. The untrue statements were part of a coordinated effort to deflect blame away from the Muellers and their family business, and onto the State of
Michigan.
4. The Public Response included a statement that Mr. Mueller and Boyce Hydro asked the State of Michigan in September 2019 to permanently lower Wixom Lake to run of river levels year-round because Mr. Mueller and Boyce Hydro believed the Edenville Dam’s spillway capacity made it unsafe to maintain Wixom Lake at either its winter or normal (spring, summer, and fall) level. That is not correct. Mr. Mueller and Boyce Hydro never expressed such a belief to the State of Michigan, and never made such a request to the State of Michigan.
5. The Public Response included a statement that Mr. Mueller and Boyce Hydro did not believe that the Edenville Dam’s spillway capacity met the safety standards of the State of Michigan. That is not correct. As late as March 26, 2020, Boyce Hydro’s dam safety engineer affirmed that the dam’s spillway capacity met State of Michigan standards, and that Boyce Hydro would not be required to upgrade the dam’s spillway capacity under Michigan law.
6. The Public Response included a statement that when Mr. Mueller and Boyce Hydro lowered Wixom Lake to run of river levels in November 2019, they intended to permanently lower it to run of river levels because Mr. Mueller did not believe the dam’s spillway capacity made it safe to maintain Wixom Lake at any other level. That is not correct. Mr. Mueller and Boyce Hydro asked the State of Michigan to temporarily lower Wixom Lake to run of river levels for the winter of 2019/2020 only because of potential ice buildup on the dam over the winter and explained in their permit application that they intended to return Wixom Lake to its normal spring, summer, and fall level in the spring of 2020, which they did.
7. The Public Response included a statement that Mr. Mueller and Boyce Hydro only returned Wixom Lake to its normal level in April 2020 because the State of Michigan took enforcement action against it, compelling it to do so despite Mr. Mueller and Boyce Hydro expressing the concern that the Edenville Dam’s spillway capacity made it unsafe to do so. That is not correct. The September 2019 permit application expressed Mr. Mueller and Boyce Hydro’s plan to return Wixom Lake to its normal level in spring 2020. They voluntarily implemented their stated plan by beginning the refill of Wixom Lake on April 13, 2020 and did not express a concern to the State of Michigan that doing so would be unsafe.
“This action by the court corrects a misleading and false narrative crafted by the defendants as a propaganda campaign against the State,” 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. This order from the court is critical to establish a foundation of truth from which our legal actions will proceed. I am committed to ensure those responsible are held accountable for their actions.”
“The court has appropriately driven a stake through the heart of this enduring fiction, establishing as fact that at no time did the dam’s owners express any concerns to the State about safe operation of the dam while at summer lake level, or seek any change in that level as established by the local circuit court,” said Liesl Clark, EGLE director. “Now we can move forward to hold these owners responsible for their years-long neglect of the Edenville Dam.”
“We appreciate this clear statement from the court acknowledging what the state has said all along: The owners of the Edenville Dam have continued to misrepresent the facts surrounding the 2020 dam failure that disrupted so many lives and did such significant damage to natural resources,” said DNR Director Dan Eichinger.
In June 2020, the Department of Attorney General, on behalf of EGLE and DNR, 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 in May 2020.
The eight-count suit was followed by a motion to compel Boyce 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. The lawsuit also seeks an order compelling Boyce 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.
Federal regulators identified deficiencies at the dam as early as 1993. Those deficiencies were well known to Boyce at the time they purchased the dam in 2004. Boyce 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 both 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 in place to upgrade the dam’s spillway capacity, 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—as the dam owners’ 13-years of resistance to FERC demonstrates—was a much faster path to improve safety than attempting to directly compel the private owners through regulatory means to undertake the repairs. That process could have taken close to a decade to complete, but the Task Force’s construction schedule was already underway at the time the dam failed. The state was providing technical assistance and a $5 million grant to assist in the repairs and the transfer of ownership to the Task Force.
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