83 FR 8253 - Boyce Hydro Power, LLC; Order Proposing Revocation of License

DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission

Federal Register Volume 83, Issue 38 (February 26, 2018)

[Federal Register Volume 83, Number 38 (Monday, February 26, 2018)]
[Notices]
[Pages 8253-8255]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-03821]



[[Page 8253]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 10808-058]


Boyce Hydro Power, LLC; Order Proposing Revocation of License

    1. Boyce Hydro Power, LLC (Boyce Hydro or licensee) is in violation 
of numerous provisions of its license for the Edenville Hydroelectric 
Project No. 10808 (Edenville Project), the Federal Power Act (FPA), and 
multiple Commission regulations and orders, including a Compliance 
Order issued pursuant to section 31(a) of the Federal Power Act.\1\ As 
discussed below, the Commission proposes to revoke the license pursuant 
to section 31(b) of the FPA.
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    \1\ Boyce Hydro Power, LLC, 159 FERC 62,292 (2017) (Compliance 
Order).
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I. Background

    2. On October 16, 1998, the Commission issued a license for the 
Edenville Project, a 4.8-megawatt (MW) hydroelectric project located in 
Gladwin and Midland counties, Michigan.\2\ The Edenville Project 
consists of earthen embankments, known as the Edenville dam, totaling 
about 6,600 feet in length and having a maximum height of 54.5 feet. It 
spans both the Tittabawassee and Tobacco Rivers, creating a 2,600-acre 
reservoir known as Wixom Lake with a gross storage capacity of about 
40,000 acre-feet and a 49-mile-long shoreline at full pool. There is a 
50-foot-long intake leading to the powerhouse located at the dam on the 
eastern side of the project. The powerhouse contains two 2.4-MW 
Francis-type turbine generator units for a total installed capacity of 
4.8 MW. The project creates a 0.4-mile-long bypassed reach on the 
Tobacco River that extends from the dam to the point where the Tobacco 
River meets the Tittabawassee River. The project also includes two 
reinforced concrete multiple arch spillways. The 69-foot-wide, 39-foot-
high Tittabawassee spillway (also referred to as the Edenville 
spillway) is located on the eastern side of the project and contains 
three Tainter gates and two low-level sluice gates. The Tobacco 
spillway is about 72 feet long and 72 feet wide with a crest height of 
about 40 feet, and contains three steel Tainter gates located on the 
western side of the project.
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    \2\ Wolverine Power Corporation, 85 FERC 61,063 (1998). The 
license was transferred from Wolverine Power Corporation to Synex 
Michigan, LLC on June 23, 2004. See Wolverine Power Corporation and 
Synex Michigan, LLC, 107 FERC 62,266 (2004). Synex Michigan, LLC 
changed its name to Boyce Hydro Power, LLC, and filed a statement 
with the Commission on July 12, 2007, to this effect. See Notice of 
Change in Licensee's Name (filed July 12, 2007).
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    3. Boyce Hydro's license includes terms and conditions concerning 
dam safety, property rights, water quality, public recreation and 
safety, and other areas of public concern. Boyce Hydro has a long 
history of non-compliance with those terms and conditions and with 
related provisions in the FPA and Commission regulations and orders. 
The Compliance Order, which was issued pursuant to section 31 of the 
FPA on June 15, 2017, detailed this history and staff's multi-year 
effort to bring Boyce Hydro into compliance.\3\ In particular, the 
Compliance Order explained that Boyce Hydro: (1) Failed to increase the 
capacity of spillways to enable them to pass the probable maximum flood 
(PMF) as required by Regional Engineer directives, license Article 4, 
and Part 12 of the Commission's regulations; \4\ (2) performed 
unauthorized dam repairs in violation of Regional Engineer directives 
and Part 12 of the Commission's regulations; \5\ (3) performed 
unauthorized earth-moving activities in violation of Standard Articles 
19-21 of the license; \6\ (4) failed to file an adequate Public Safety 
Plan in violation of Regional Engineer directives and Part 12 of the 
Commission's regulations; \7\ (5) unduly restricted public access to 
project facilities and failed to construct approved recreation 
facilities in violation of Standard Article 18 and Article 410 of the 
license and the Commission's Orders Modifying and Approving Recreation 
Plan; \8\ (6) failed to acquire and document all necessary project 
property rights in violation of Standard Article 5 of the license; \9\ 
and (7) failed to comply with the Commission's 1999 Order approving 
Boyce Hydro's Water Quality Monitoring Plan in violation of that order 
and Article 402 of the license.\10\ The Commission's primary concern 
has been the licensee's longstanding failure to address the project's 
inadequate spillway capacity, which currently is designed to pass only 
approximately 50 percent of the PMF. Failure of the Edenville dam could 
result in the loss of human life and the destruction of property and 
infrastructure.
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    \3\ Boyce Hydro Power, LLC, 159 FERC 62,292 (2017) (Compliance 
Order).
    \4\ See Compliance Order, at PP 5-26.
    \5\ See id. PP 35-46.
    \6\ See id. PP 54-76.
    \7\ See id. PP 84-86.
    \8\ See id. PP 92-107 (identifying, among others, violations of 
Wolverine Power Corporation, 96 FERC 62,055 (2001) and Synex 
Michigan, LLC, (Dec. 5, 2006) (unpublished order)).
    \9\ See id. PP 116-124.
    \10\ See id. PP 134-141.
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    4. Ordering Paragraphs (A) through (M) of the Compliance Order 
required Boyce Hydro to provide specific plans, specifications, reports 
and other information to address the violations identified in that 
order and to come into compliance with the Commission's regulations and 
the terms of its license. On July 14, 2017, and July 27, 2017, the 
licensee filed two requests for more time to comply with certain 
requirements in the Compliance Order. By orders issued July 25, 2017, 
and August 15, 2017, the extensions that the licensee requested were 
granted, with the exception of one portion of the second requested 
extension, which the order determined could be completed in the time 
provided in the first extension without the need for a second.\11\ 
Those extensions were granted based on representations made by the 
licensee and its counsel regarding steps that the licensee was taking 
to satisfy the requirements of the Compliance Order.
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    \11\ The first order granted an additional 30 days to comply 
with the requirements in ordering paragraphs (B), (C), (D), (E), 
(F), and (G) of the Compliance Order. The second order granted more 
time to comply with ordering paragraphs (B), (G), and (D), but 
denied more time for complying with ordering paragraph (F).
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    5. Boyce Hydro failed to comply with obligations set out in each of 
the ordering paragraphs in the Compliance Order, except for the 
obligations to acquire and document certain property rights (although 
the lack of designs for the new and revised spillways makes it 
difficult to determine if it has acquired all necessary property 
rights) \12\ and to implement certain requirements in the project's 
approved Water Quality Monitoring Plan.
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    \12\ In filings made with the Commission on July 26, 2017, 
August 22, 2017, and January 22, 2018, Boyce Hydro states that it 
possesses the necessary property rights over the land within the 
project boundary and that it has acquired rights to land (and has 
ability to acquire rights to additional land) that may be necessary 
to complete construction of the Tobacco River Auxiliary Spillway. 
However, because the licensee has not provided plans and 
specifications for the Tittabawassee Auxiliary Spillway or provided 
other documentation specific to where the Tittabawassee Auxiliary 
Spillway will be constructed, Commission staff is still uncertain if 
the licensee has, in fact, obtained rights to all land necessary for 
the construction of the Tittabawassee Auxiliary Spillway, as 
required by the Compliance Order.
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    6. Boyce Hydro violated the following ordering paragraphs in the 
Compliance Order and associated orders extending time:
     Ordering paragraph (B) directed: For the Tobacco River 
Auxiliary Spillway: By July 15, 2017 (extended to September 18, 2017), 
the licensee was required to file a complete design

[[Page 8254]]

package with the Commission's Division of Dam Safety and Inspection, 
Chicago Regional Engineer (Regional Engineer) for a Tobacco River 
Auxiliary Spillway. The design package must fully address all items 
noted in the Regional Engineer's letter to the licensee dated June 6, 
2016.
     Ordering paragraph (D) directed: For the Tittabawassee 
River Auxiliary Spillway: By August 14, 2017 (extended to November 14, 
2017), the licensee was required to file with the Regional Engineer, 
plans, specifications, and a schedule to construct a Tittabawassee 
River Auxiliary Spillway.
     Ordering paragraph (F) directed: By October 13, 2017 
(extended to November 14, 2017), the licensee was required to file with 
the Regional Engineer, a plan and schedule for additional modifications 
to the project to meet the full (100%) Probable Maximum Flood.
     Ordering paragraph (G) directed: By July 30, 2017 
(extended to September 30, 2017), the licensee was required to file 
with the Regional Engineer, complete plans and specifications for 
permanent repairs to both left and right Tobacco River abutment 
spillway walls, a complete work schedule, detailed drawings, a water 
management plan, an erosion control plan, a Temporary Construction 
Emergency Action Plan, and a Quality Control Inspection Program as 
originally specified in the Regional Engineer's letter to the licensee 
issued December 8, 2016.
     Ordering paragraph (J) directed: By September 13, 2017, 
the licensee was required to provide reasonable access to project lands 
and waters for the public and to file documentation that such access 
has been provided. The licensee's documentation must include 
photographs showing that gates restricting access to parking and 
fishing areas are open, that fencing blocking access to recreation 
features has been removed, and that reasonable access to the water is 
allowed. The licensee's documentation must also include a statement 
from the licensee affirming its compliance with the access provisions 
of Article 18.
     Ordering paragraph (K) directed: By September 13, 2017, 
the licensee was required to file with the Regional Engineer, a 
complete design package for construction of all recreation facilities 
required by the project's approved Recreation Plan. The approved 
recreation facilities for the Tittabawassee side include: A parking lot 
for 15 cars off of State Highway 30, a parking lot with two handicapped 
spaces, a barrier-free restroom, a railed handicapped-accessible 
fishing pier next to the powerhouse, two canoe portages, access paths, 
and signs that identify the recreation facilities. The approved 
recreation facilities for the Tobacco side include: A parking lot for 
15 cars off of State Highway 30, an access path, stairs to a railed 
fishing pier, and signs that identify the recreation facilities. Within 
90 days of completing this work, the licensee must file documentation 
including as-built drawings and photographs demonstrating that the 
recreation facilities in the approved Recreation Plan have been 
constructed.
    7. Boyce Hydro failed to make the filings required by ordering 
paragraphs (B), (D), (F), (G), (J), and (K) of the Compliance Order. It 
claims to have started the process of preparing the design package for 
the Tobacco River Auxiliary Spillway that was required by Ordering 
Paragraph (B), but it requested an additional four to five-month 
extension to complete that design package.\13\ And that is only the 
design of the Tobacco River Auxiliary Spillway--Boyce Hydro claims that 
it lacks the funds to actually construct the spillway and will need to 
save money over some unspecified period of time (and resolve 
outstanding state permitting issues) before it can start 
construction.\14\ Of course, this addresses just one of the two 
auxiliary spillways it must design and construct and does not include 
the other modifications that it will need to make to satisfy PMF 
requirements and/or to satisfy its obligations under the Compliance 
Order.
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    \13\ See, e.g., Boyce Hydro Power, LLC, Docket Nos. P-10808-047 
& -053, at 8-9 (Dec. 1, 2017).
    \14\ See id. at 9-10.
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    8. Boyce Hydro did not seek rehearing of the Compliance Order, and 
it has admitted that it failed to meet the obligations imposed by that 
order.\15\ It remains in violation of its license, the FPA, and 
Commission regulations and orders.\16\
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    \15\ See id. at 8-15 (admitting, among other things, Boyce 
Hydro's failure to comply with Ordering Paragraphs (B), (D), (F), 
(G), (J), and (K) of the Compliance Order and requesting further 
extensions and/or a stay of those obligations).
    \16\ On November 20, 2017, Commission staff issued an order 
requiring Boyce Hydro to cease generating at the Edenville Project, 
and Boyce Hydro filed a timely request for rehearing of that order. 
Concurrent with this Order Proposing Revocation, we are issuing an 
order denying rehearing of the Cease Generation Order.
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II. Discussion

    9. Under section 31(b) of the FPA,\17\ after providing notice and 
an opportunity for an evidentiary hearing, we may issue an order 
revoking a license if we find that the licensee knowingly violated a 
final compliance order and was given a reasonable time to comply with 
that order before the revocation proceeding was commenced.\18\ In 
addition, section 31(b) provides that the Compliance Order shall be 
subject to de novo review and that the Commission shall consider the 
nature and seriousness of the violation and the licensee's efforts to 
remedy the violation.
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    \17\ See 16 U.S.C. 823b(b) (2012). Section 31(b) provides that 
after notice and an opportunity for an evidentiary hearing, the 
Commission may issue an order revoking a license, where the licensee 
is found by the Commission to have knowingly violated a final order 
and has been given reasonable time to comply fully with that order.
    \18\ See e.g. Eastern Hydroelectric Corp., 149 FERC 61,036 
(2014), reh'g denied, 150 FERC 61,099 (2015) (revoking license for 
failure to construct a required fish passage); Virginia 
Hydrogeneration and Historical Society, L.C., 104 FERC 61,282 (2003) 
(proposing revocation of license for failure to comply with 
environmental conditions); Energy Alternatives of North America, 
Inc., 68 FERC ] 61,196 (1994) (proposing revocation of the license 
for failure to comply with public safety requirements).
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    10. This order provides notice that we propose to revoke the 
license for the Edenville Project No. 10808 under section 31(b). As 
explained in the Compliance Order, Boyce Hydro has failed for many 
years to comply with significant license and safety requirements, 
notwithstanding having been given opportunities to come into 
compliance. The Compliance Order set out specific parameters for Boyce 
Hydro to achieve compliance with its license. The licensee failed to 
meet nearly all the obligations in the Compliance Order, even after 
Commission staff granted multiple extensions.\19\ Thus, based on the 
record, there is no reason to believe that the licensee intends to come 
into compliance. We conclude that it has been given a reasonable time 
to comply with the Compliance Order and considering the serious dam 
safety issues \20\ and lack of demonstrated effort

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by Boyce Hydro to comply with the Compliance Order, we propose 
revocation of the project license.\21\
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    \19\ Boyce Hydro's offer to place 50 percent of gross revenues 
from the Edenville Project into escrow until it has saved enough 
money to construct the Tobacco River Auxiliary Spillway does not 
convince us that it will satisfy its obligations under the 
Compliance Order if we grant another extension. Boyce Hydro has not 
provided any estimate of when it will complete construction of that 
spillway, let alone when it can complete and submit the designs for 
the other auxiliary spillway and satisfy the other obligations set 
out in the Compliance Order.
    \20\ Public safety would not be affected by revoking the 
license. Should the Commission ultimately revoke Boyce Hydro's 
license, the Commission's jurisdiction will end, and authority over 
the site will pass to the State of Michigan's dam regulatory 
authorities. See Mich. Comp. Laws 324.31506 (giving the Michigan 
Department of Environmental Quality regulatory authority over dams 
and impoundments in the state); see also Eastern Hydroelectric 
Corp., 149 FERC 61,036 at P 35 (noting that upon revocation the 
authority to regulate dam safety and other issues related to the dam 
and impoundment would transfer to the state).
    \21\ Revocation of the Edenville Project license does not 
mandate removal or any modification of the dam. While, the 
Commission has broad authority to fashion appropriate remedies to 
further the goals of the FPA in a manner that is necessary and 
appropriate to carry out the revocation of this license, as a 
general rule, we do not condition the effectiveness of a license 
revocation by imposing additional requirements on a licensee that 
has shown its unwillingness to comply with other Commission orders. 
Eastern Hydroelectric Corp., 149 FERC 61,036 at P 33 (declining 
request to order removal of all project facilities including the dam 
and instead only requiring licensee to disable all of the project's 
generating equipment to prevent operation of the project).
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    11. The licensee may request an evidentiary hearing before an 
Administrative Law Judge within 30 days of this issuance date of this 
order.\22\ If, within 30 days, the licensee requests a hearing, the 
Commission will set the matter for hearing. If the licensee does not 
request a hearing, the Commission will decide this matter based on the 
written record. Any interested person may file a motion to intervene in 
accordance with the requirements of the Commission's Rules of Practice 
and Procedure (18 CFR 385.214). A person does not have to intervene in 
order to have comments considered. Any person may file with the 
Secretary of the Commission, comments in support of or in opposition to 
the proposed revocation. The Commission will consider these comments in 
determining the appropriate action to be taken, but the filing of a 
comment alone will not serve to make the filer a party to the 
proceeding.
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    \22\ See 16 U.S.C. 823b(b) (2012).
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The Commission Orders

    (A) Pursuant to section 31(b) of the FPA, 16 U.S.C. 823b(b) (2012), 
the Commission proposes to revoke the license for the Edenville Project 
No. 10808.
    (B) Boyce Hydro may request an evidentiary hearing within 30 days 
of the issuance date of this order.

    By the Commission.

     Issued February 15, 2018.
Kimberly D. Bose,
Secretary.
[FR Doc. 2018-03821 Filed 2-23-18; 8:45 am]
 BILLING CODE 6717-01-P