Letter to the Hon. Neil Chatterjee, Chairman of the Federal Energy Regulatory Commission - Upton, Dingell Ask Questions Surrounding Edenville Dam Breach

Letter

Dear Chairman Chatterjee:
We write to request further information about the actions the Federal Energy Regulatory
Commission (FERC or the Commission) took in overseeing hydropower Project No. 10808, the
Edenville project, operated by Boyce Hydro Power, LLC (Boyce Hydro) in Michigan. At the
outset, we recognize FERC's jurisdiction over the Edenville project ended in September 2018
when the Commission revoked Boyce Hydro's license1 for cause, thus transferring authority to
the State of Michigan (Michigan). The breach of the Edenville dam last week resulted in
catastrophic damage in the areas downstream of the dam. In addition to the massive property
damage caused by the dam's failure, flooding of contaminated sites and chemical facilities--
including one containing a federally-regulated nuclear research reactor--in Midland, Michigan,
threatened public health and the environment.
As you know, the Edenville project and its operator, Boyce Hydro, have a long history of
dam safety and compliance problems. The project was mentioned in a 2018 Government
Accountability Office report on FERC's dam safety program requested by our Committee in
response to the 2017 Oroville Dam failure.2
Prior to issuing the order, the Commission engaged
in a multi-year effort to bring Boyce Hydro into compliance with FERC's dam safety
requirements. We are concerned that three other projects operated by Boyce within the same
river system--the Sanford, Secord, and Smallwood Dams--may present a similar threat to
surrounding communities.
To assist us in better understanding the current situation and the sufficiency of tools
available to FERC under the Federal Power Act (FPA) to address the public safety risks
presented by high hazard dams, we request responses to the following questions:
1. Section 31 of the FPA gives FERC the authority to levy civil penalties on licensees for
non-compliance with FERC orders and license requirements. Did the Commission levy
civil penalties against Boyce Hydro for its repeated non-compliance? If so, what
penalties did Boyce Hydro pay? If not, why not?
2. The record indicates that FERC's dam safety engineers were aware of the deficiencies in
the spillway capacity of the Edenville facility since at least 1999 when the facility was
operated by a previous licensee. Was Boyce Hydro aware of the issues with the spillway
and the need to repair the spillway when it acquired the license? At that time, did the
Commission include limitations on reservoir level or capacity or other operational
conditions in the license to minimize the risk of dam failure?
3. Why was Boyce Hydro allowed to continue operating out of compliance for over 10
years before the Commission revoked its license?
4. Boyce Hydro made repeated assertions during its years of non-compliance that the cost
for repairs and lack of financing was a major barrier to complying with FERC's directive
to address the spillway capacity. Since the spillway issue was known at the time Boyce
Hydro took over the license, did FERC assess Boyce Hydro's financial capacity to make
those repairs prior to approving the license transfer? What were the estimated costs of
bringing the project into compliance with dam safety standards? Does FERC have
authority to assess the financial capacity of a licensee if significant repairs are needed to
the project prior to licensing?
5. FERC's 2017 Compliance Order
3 stated that: "the Commission's primary concern is
Boyce Hydro's longstanding failure to address the project's inadequate spillway capacity,
which must be remediated to protect life, limb, and property." When FERC made the
decision to go forward with the Revocation Order, did FERC consult Michigan regarding
the significant public safety concerns stemming from the longstanding non-compliance
pattern by Boyce Hydro and the implications for the state?
6. What, if any, involvement did Michigan have during the non-compliance proceeding?
What, if any, involvement did Michigan have during the revocation proceeding? Did
FERC determine what authorities Michigan has in order to compel necessary repairs to
the facility under State law after revocation?
7. Boyce Hydro continues to operate three other similar projects in the region -- Sanford
(P-2785), Secord (P-10810) and Smallwood (P-10809),. These three FERC-licensed
projects appear to present similar risks of dam failure. What actions is FERC taking to
lower the risk that these facilities also fail? Is Boyce Hydro in compliance with all
license conditions and dam safety standards with respect to these three facilities? Has
FERC started non-compliance proceedings for any of these facilities?
8. Since the Edenville facility is no longer under FERC jurisdiction, will the Commission
have any role in a post-event examination of this incident of dam failure?
9. In May 2020, the State of Michigan sued Boyce Hydro for alleged counts of
environmental violations, public nuisance, and conversion, based upon Boyce Hydro's
lowering of Lake Wixom's water level.4 Did Michigan consult with FERC with regard
to this lawsuit? Will FERC investigate whether the reservoir water level caused or
contributed to the breach of Edenville Dam?
10. Does FERC have any recommendations to improve the safety of dams, such as Edenville,
that have had their Federal license revoked and that are under the primary jurisdiction of
a State agency? Does FERC have any recommendations to improve federal law with
respect to the safety of dams under its control or those being transferred from federal to
state control?
Please provide a response to the above questions by Friday, June 12, 2020. If you have
any questions please contact Jean Fruci (Jean.Fruci@mail.house.gov) or Rick Kessler
(Rick.Kessler@mail.house.gov) with the Committee Majority Staff at (202) 225-2927 or
Brandon Mooney (Brandon.Mooney@mail.house.gov) with the Committee Minority Staff at
(202) 225-3641. Thank you for your consideration and attention.