Government watchdog: EPA slow to raise alarm in Benton Harbor water crisis

• A government watchdog says EPA officials failed to quickly alert agency leaders about Benton Harbor’s water crisis 
• The EPA created the so-called 'elevation policy' in response to the Flint water crisis

Environmental Protection Agency regulators failed to quickly alert agency leadership about the lead-in-water crisis in Benton Harbor, despite a policy that encouraged them to do so, a government watchdog concluded Thursday.

The report, by the EPA Office of Inspector General, found that high lead levels and other problems detected in Benton Harbor’s water system in 2018 met the criteria for a relatively new EPA “elevation policy” created in the wake of the Flint water crisis.

That policy encourages rank-and-file staff to alert top agency officials to public health and environmental risks that may need special attention.

Related: 

• In Benton Harbor, lead lines are gone but water remains a luxury
• High costs, few customers: Benton Harbor water woes loom for Michigan cities

But in Benton Harbor, said Mike Davis, a co-author of the report and the EPA Office of Inspector General’s director of environmental investment and infrastructure, “the elevation policy wasn't used.”

“We're hoping that in the future going forward, it can be,” Davis said. “Perhaps if it is, things can get done quicker.”

In Benton Harbor’s case, the lead exceedances were among a host of problems for the financially-strapped city’s water system. Even before they emerged, state regulators had cited Benton Harbor’s water supply for a range of deficiencies, many of which stemmed from chronic funding and staffing shortages.

A $5.6 million EPA grant to address those issues arrived two years later, as activists began to pressure public officials over what they saw as a slow local, state and federal response.

The problems facing Benton Harbor are not unique to Michigan’s former industrial cities, where shrinking populations and declining wealth have left local governments unable to collect enough money from ratepayers to cover long-term water system costs.

Benton Harbor’s 1950s-era water system was designed to deliver up to 12 million gallons daily to a city that at the time numbered 19,000 residents, plus plenty of industrial water users. 

Decades of deindustrialization and population loss have left the city with just 9,100 residents today, 44 percent of them in poverty. With deliveries down 90 percent from their peak, the water system already struggled to cover basic maintenance costs when the lead problems emerged, adding yet another expense.

The lead crisis dragged on for three years, with lead line replacement efforts proceeding slowly as local and state officials struggled to find the right mix of anti-corrosion chemicals to stop lead from leaching out of aging city service lines.
Local, state and federal regulators have faced harsh criticism for what some viewed as a slow response.

Auditors at the EPA concluded in their report released Thursday that the problems in Benton Harbor met four out of five criteria for the elevation policy:

• There was a substantial threat to public health
• The EPA could reasonably be expected to be a focus in the need for action
• Normal enforcement and compliance tools were unlikely to succeed
• There was a possibility for high and sustained public attention

It’s not clear what might have changed about the federal response to the crisis if staff had more urgently elevated their concerns. Auditors noted that EPA staff said they believed Michigan state regulators were “addressing the lead levels in a timely manner.”

Auditors recommended that EPA figure out how the elevation policy can be used more effectively in the future, and find ways to “enhance EPA staff understanding” of the policy.

Davis noted that since 2018, the elevation policy has only been used 11 times to address emergencies in the U.S. 

“I would think in four years there's probably more than 11 things that rise to, you know, the level of needing attention because there's some serious public health risks,” Davis said.

EPA officials pushed back on the report’s findings.

Wesley Carpenter, deputy chief of staff for EPA Administrator Michael Regan, contended the elevation process is working as intended. He called it a “voluntary tool” and “not the only means in which an employee can elevate a concern, risk, or vulnerability to agency senior leadership.” 

Tera Fong, the EPA’s regional water division director for an area that includes Michigan, and Robert Kaplan, regional counsel, called the audit “critically flawed,” in a letter responding to the report. They said EPA staff had used other communication channels to alert higher-ups to Benton Harbor’s drinking water concerns.

They said the elevation policy is meant to be used as an “extraordinary alternative.”

“If Agency staff were to invoke the elevation policy to elevate any issue that meets some of the elevation policy criteria,” Fong and Kaplan wrote, “the separate elevation channel would be completely overwhelmed.”

After years of repeated lead exceedances in Benton Harbor, activists in 2021 filed an emergency petition with the EPA asking federal regulators to intervene. A new wave of state and federal support followed, including tens of millions of dollars to get lead pipes out of the city’s water system.

Rev. Edward Pinkney, a Benton Harbor water activist involved in the response to the lead crisis, said Thursday’s findings vindicate early concerns raised by local activists.

“All along, we were attempting to get them to understand that there was a major problem,” said Pinkney. “This gives us validity.”

Environmentalists called on the EPA to heed the audit’s findings.

“On the heels of the Flint water crisis, Benton Harbor's water crisis was another abject failure of the EPA to protect an environmental justice community,” said Cyndi Roper, senior policy advocate with the Natural Resources Defense Council. 

Her group is among those pushing the EPA to issue a new federal Lead and Copper Rule that sets lower allowable lead levels and requires utilities across the country to eliminate lead service lines.

State-level rule changes made in 2018 require Michigan utilities to replace all of their lead service lines by 2041.

The effort to replace thousands of lead service lines  in Benton Harbor is nearly complete, and the city’s lead levels have been below the federal action level since December 2021.

But financial woes persist in the water system, which still needs millions of dollars in upgrades.

And the crisis may have permanently damaged residents’ trust in state and federal government, Pinkney said, noting many people are “not really willing to drink from the faucet yet.”