Docs: Benton Harbor water response marked by delays, poor messaging

Fourteen months after tests of Benton Harbor’s water system first revealed elevated lead levels, state environmental staffers had begun to feel “caught between a rock and a hard place.”

The Michigan Department of Environment, Great Lakes and Energy had ordered Benton Harbor to fix water system problems, including several that predated the lead contamination crises. But the city, lacking enough money or staff to quickly comply, had sought extension after extension.

“Maureen, Ernie and I are all reluctant to continue this pattern,” Mike Bolf, an EGLE engineering unit supervisor, told his boss, drinking water and environmental health director Eric Oswald, a week before Christmas in 2019. 

Related:

• Michigan environmental leader admits flaws with Benton Harbor lead crisis
• Amid lead crisis, EPA orders Benton Harbor to fix water quality violations
• In Benton Harbor, residents’ complaints of lead-tainted water carry echoes

Fines, Bolf wrote in an email, won’t help fix a problem whose root cause is a lack of funds. 

“However, if we continue the pattern of allowing (Benton Harbor) to miss deadlines and request extensions, then the water system remains vulnerable and we are potentially culpable if a problem occurs.”

Bolf’s expression of helplessness was found within thousands of newly-released state documents that detail how bureaucratic processes dragged on for years as state regulators and local officials haggled over how to fix Benton Harbor’s water crisis, while some residents remained unaware their water could be tainted.

The documents, made public this week in response to a Senate Oversight Committee probe, paint a picture of a city water operator who struggled to fulfill the duties of running a system in crisis and resented state pushback; a state agency that pressed for faster action but repeatedly gave the city more time, and a lack of funding that allowed problems to fester for years.

The Benton Harbor crisis has emerged as a political liability for Democratic Gov. Gretchen Whitmer. In her 2018 campaign, she declared water a "fundamental human right" and promised more aggressive environmental protections than her Republican predecessor, Rick Snyder, who is currently fighting misdemeanor "willful neglect" charges related to the Flint water crisis. 

In her first week in office, Whitmer issued a Flint-inspired directive requiring state employees to immediately inform their director if they identify any "imminent threat to public health, safety or welfare." She created new environmental justice and clean water advocate positions, and more recently lobbied the Republican-controlled Legislature for more statewide water infrastructure funding. 

But asked Thursday if her approach had worked to prevent a worse crisis in Benton Harbor, the governor did not respond directly. Instead, Whitmer touted a newer directive calling for a "comprehensive review of the state's role in our drinking water systems."

"I hear the question," Whitmer told reporters. "Let me just say this: What we're seeing in Benton Harbor is serious. We're taking it serious."

Communication breakdowns

In a letter this week to the state Senate Oversight Committee, EGLE Director Liesl Clark insisted that state regulators went "beyond legal requirements" to address the Benton Harbor water crisis.  

But Clark, a Whitmer appointee, acknowledged communication gaps as one potential weakness in the response. Despite attempts to warn the public about risks associated with their drinking water, "many residents were not fully reached and engaged,” she conceded.

The newly released documents show communication breakdowns began to concern state officials as early as January 2019, when an activist working to distribute water filters to local residents alerted Oswald (the drinking water and environmental health director) to inconsistencies.

Water samples in October 2018 revealed elevated lead levels in the tap water coming from some Benton Harbor homes. In a community where the vast majority of residents get their water from lead service lines and the water had never been treated with chemicals designed to lock lead out of the water, the findings were concerning.

Yet Michael O'Malley, the self-described “water guy” who oversaw Benton Harbor’s water delivery system, was still advising all residents — even in homes with verified high lead levels — to continue drinking from taps  "because (city water officials) provide clean water 'right to their spout,’” according to an email from Isabel Marrah of the nonprofit group Freshwater Future.

The local instructions were consistent with state guidance for residents to “flush” their taps of possible lead contaminants by running the water for three to five minutes before using it. Those instructions continued even after the city had verbally pledged to provide bottled water or filters to residents in homes where testing confirmed high lead levels, according to emails from state and county officials. 

Lead is a toxic metal that can cause brain damage and developmental problems. No amount is safe to ingest, but state and federal water quality standards require action when 10 percent or more of water samples contain levels above 15 parts per billion. 

“I'm quite troubled by this information and will be working with our legal counsel to see how we can ratchet up a response and try to get more information about what the city is or is not providing to residences with a known level 15 or above,” then-Berrien County Health Officer Nicki Britten told state officials in an email that same day, Jan. 9, 2019.

“I was under the impression that the city was mitigating this public health hazard by providing water or filters like they said they would,” she wrote. 

EGLE’s Drinking Water and Environmental Health Division shared similar concerns five days later in a "bubble-up report" to various environmental department officials. 

"Recent communication with the City has indicated that they are not following through on their original public commitments (not required by law) to provide bottled water or filters to residents with high lead results," the report read, adding that some of the city’s public messages “may not be consistent with the health risks associated with lead exposure.”

The October 2018 lead violation had triggered a series of required responses by the city, including the duty to send public notice of the lead problem within three days and send printed materials to all bill-paying customers within 70 days. 

But by early into the new year, state and county officials were still trying to obtain and review the city’s written communication to homeowners, along with addresses for homes where testing had already confirmed elevated lead levels, according to the bubble-up report. 

The city had "rejected" state and county health department offers to provide "accurate supplementary public health information" to local residents and was "not exploring all avenues to provide accurate information to the public,” the memo said.

In an interview this week, Marc Edwards, the Virginia Tech professor who helped expose the lead crisis in Flint, said it’s not surprising Benton Harbor residents lived with elevated lead levels for nearly three years, because addressing contamination is “complicated.” 

"The law only requires that you make efforts to address the problem, and while you're addressing the problem, inform people that there is a problem so they can take steps to protect themselves," he told Bridge Michigan.

Following the high-profile crisis in Flint, communities with elevated lead levels have come to expect filters or bottled water, but "that's never been required," Edwards said, declining to say whether he thinks the existing law is sufficient to protect public health. 

“The only thing I care about is, if you have a law, please follow it and do not lie to people," Edwards told Bridge. “Technically, there's nothing illegal that I've seen that happened in Benton Harbor, at least from what I’ve read.”

Short staffing, shallow pockets, and many expensive tasks 

Lead lines were just one of many problems with Benton Harbor’s water system. A 2017 city water asset management plan warned that “much of the system has aged to or beyond its maximum life.”

Cash flow sheets showed the water system frequently operated at a loss, relying on grants and loans to make up the deficit. That, Mayor Marcus Muhammad told Bridge, left the city in a vicious financial cycle of debt. He likened it to relying on payday loans to buy groceries.

The city had long struggled to collect enough revenue from water customers to maintain the water system. Benton Harbor’s population, now 9,100, had shrunk over decades from a high of nearly 19,000 in the 1950s. Today, nearly half the residents in the city, which is 83-percent Black, live in poverty.

Benton Harbor was approaching insolvency in 2010, when then-Gov. Jennifer Granholm appointed an emergency financial manager, who would go on to halve the city's workforce by 2014. 

Worsening matters, neighboring communities in recent years had ditched the city’s water system to get their water elsewhere, leaving fewer customers to cover costs. 

Water-quality violations were common. By 2018, state regulators came down on Benton Harbor for a range of problems at the plant and acknowledged the city lacked money for fixes. 

The first solution environmental regulators proposed under then-Gov. Rick Snyder, a Republican who was still navigating fallout from the Flint water crisis: Raise water rates on Benton Harbor customers to pay for needed upgrades.

The Whitmer administration came to the same conclusion in March of 2019, when it brokered an administrative consent order requiring Benton Harbor to fix various deficiencies identified the prior year. The first compliance requirement: Hire a consultant to conduct a "rate study" and then submit a plan to raise customer rates by no later than April 1, 2019.

Raising water bills is often "the only way" local systems can pay for needed infrastructure improvements, said Edwards, the Virginia Tech professor who for decades has urged the federal government to spend more to avoid a national lead-in-water crisis.  

But higher rates can prompt residents to move or stop paying their bills, creating the kind of "death spiral we saw in Flint," Edwards told Bridge Michigan.  "You get the water you can afford and, unfortunately, many of these poor cities can't afford to meet existing water standards.”

In Benton Harbor, the elevated lead levels added to an existing financial burden, while funding and staffing shortages slowed the response.

The city’s aging water treatment plant was not equipped to feed corrosion control into its water. Doing so required a construction project Benton Harbor couldn’t afford, forcing the city to get clearance to redirect some $20,000 in state grant funds that had been intended for other water system upgrades, such as lead service line replacement. 

Corrosion control is “unequivocally the best way to mitigate lead exposure throughout town,” EGLE surface water treatment specialist Ernest Sarkipato wrote in an April 2019 email, endorsing the grant plan. It will help “reduce lead in every home,” which is "quite a lot of health protection for $30k as compared to removing lead service lines."

Records show the state gave Benton Harbor at least five deadline extensions to comply with the March 2019 administrative consent order, which was triggered by water system problems that predated the lead crisis. 

As EGLE worked with Benton Harbor to address those earlier deficiencies, the city and a contractor, Abonmarche, submitted an initial 2020 plan to raise rates. But officials acknowledged those rate increases would require city commission approval and may not be politically viable. 

In May 2020, the city — with an assist from the state — applied for a nearly $15 million grant from the U.S. Environmental Protection Agency to help replace lead pipes and conduct a required corrosion control study for a city that couldn’t afford such measures on its own. 

"Water rates, already the highest in the area, do not have the capacity to raise the (money) necessary to replace lead service lines,” local officials wrote in the application. 

They noted that Benton Harbor had steadily lost population since its 1950s heyday and made the case that “funding assistance is critical for Benton Harbor to create a reliable, lead free and safe drinking water supply without compromising the progress it has made toward stronger financial health.”

City officials received notice later that year that they would get money, but far less than they’d sought: $5.6 million. The money was slow to arrive, too, finally reaching the city this June after the EPA conceded an initial timeline had been “optimistic.”

Meanwhile, a pandemic spending freeze complicated the state response. When Sarkipato asked about Benton Harbor funding options in April 2020, EGLE Water Infrastructure Financing Administrator Kelly Breen told him new grants are “on hold” as a result of COVID-19 belt tightening.

Elin Betanzo, a water quality expert and former EPA official who now owns a consulting business, told Bridge the bureaucratic wrangling in Benton Harbor points to a cruel irony: Regulators likely only uncovered Benton Harbor’s chronic lead problems because of testing reforms made in the wake of the Flint water crisis.

But federal and state regulations still require water suppliers to do fairly little once they detect lead problems: Use corrosion control, and start replacing lead service lines at a rate of 7 percent per year.

“Most of the time (the high lead tests) go away,” Betanzo said, allowing regulators to “kind of brush it off and pretend like it didn’t exist.”

Both she and Edwards, the Virginia Tech professor, said the only real solution is removing lead pipes from America’s water delivery system. 

In Michigan, local governments are expected to pick up the tab for that expensive work — and many have publicly warned legislators that they lack the resources.

"These communities are just in impossible situations," Edwards said. "It’s not just Benton harbor. I work with hundreds of communities who are in the same boat.”

So corrosion control becomes a stopgap measure, and that takes time too, because it is “necessary” to wait and see if the chemical treatment works as intended, Edwards said. 

Corrosion control is effectively a “trial-and-error process,” he said. "If we had invested the money in understanding the science — which we never have — maybe we would be at a point where you could with confidence predict what would work and when."

Differing opinions, and a struggle to stop lead from leaching

The newly revealed records show an intense — at times, combative — debate between state and local regulators over how to best treat Benton Harbor water after the city’s first lead exceedance in late 2018.

EGLE officials worked with Benton Harbor and a city contractor, Elhorn Engineering, to quickly get corrosion control flowing into the water system, under the condition that Benton Harbor would then swiftly conduct a study to identify the ideal chemical mix.

In March of 2019, Benton Harbor began feeding a 70/30 mix of orthophosphate and polyphosphate into the water.

It was a step more aggressive than required: Under state policy, Benton Harbor could have waited six months to propose a response to the lead problems, and months or even years more to follow through.

But Benton Harbor and its contractor, Elhorn, missed deadlines to provide the follow-up study. The state later rejected the study as insufficient.

Meanwhile, the water plant’s skeleton staff struggled to keep up with a workload that had grown as a result of the crisis. In addition to improving the water system, Benton Harbor was now required to test for lead every six months. As the deadline neared to collect another round of lead samples, O’Malley pleaded with EGLE for leniency.

Noting “the City’s decimated financial condition brought on by 2 State Appointed Emergency Managers,” he wrote EGLE officials in April 2019 to “insist” upon collecting only 40 samples, rather than the 60 the state was requiring.

EGLE denied his request, but offered to help O’Malley meet his June 30 sampling deadline.

“Just say the word, I could potentially be there first thing tomorrow for a few hours to help,” Sarkipato wrote to O’Malley on June 13.

O’Malley responded that he had already asked for the state’s help, and “been denied.” Ultimately, staff from the Michigan Department of Health and Human Services helped the city knock on doors in search of participants willing to provide water samples from their homes.

In the months following, O’Malley expressed optimism that the anti-corrosion mix was bringing lead levels down sufficiently. EGLE disagreed.

“The treatment is not achieving desired results quickly enough,” EGLE Lead and Copper Unit Supervisor Brandon Onan wrote to Benton Harbor City Manager Ellis Mitchell and other local officials on Feb. 13, 2020. 

State regulators directed the city to switch to a stronger orthophosphate mix, fed into the water at double the volume of the previous mix. But O’Malley pushed back, accusing state officials in a Feb. 24, 2020 email of “jumping to conclusions.” With time, he believed, results would show that the weaker mix was working.

“It felt like, you want us to begin running scared,” he said.

By then, the new emails show, EGLE staff had begun to grow frustrated with O’Malley: “I am not sure how to communicate with this person anymore,” Sarkipato vented to his colleagues in January 2020 after an exchange over the city’s failure to submit required lead samples. 

A frustrated O’Malley routinely complained that he had too few staff and not enough money to fulfill EGLE’s demands.

“We are all busy, with not enough help,” he wrote to Sarkipato in July 2019, in response to a question about corrosion control data Benton Harbor.

By December 2020, when Bolf alerted his superiors to his misgivings about granting another extension, the corrosion control study still had not been done.

EGLE continued to grant extensions. Then in March 2020, the agency took the symbolic step of tacking on a $500 fine, noting that the money could go toward achieving the needed fixes.

Meanwhile, the city’s lead levels remained high, and tension between EGLE and O’Malley continued.

In an August 28, 2020 email, O’Malley, still angry about the stronger corrosion control treatment EGLE had “crammed down our throats,” writes that “‘BENTON HARBOR IS NOT FLINT’ We've done all the things Right!”

Months later, city officials fired O’Malley. EGLE revoked his license earlier this year, citing a range of misdeeds from falsifying data to improperly disposing of sludge from the water plant. 

Muhammad, the mayor, declined to comment on O’Malley’s dismissal, and Bridge was unsuccessful in attempts to contact O’Malley by phone.

Rev. Edward Pinkney, a local water activist who leads the Benton Harbor Community Water Council, described O’Malley as someone who “cared about the residents of Benton Harbor,” but was at times slow to get things done — a situation made worse by a lack of resources.

O’Malley now works at a local hardware store, Pinkney said. 

The Whitmer administration has come under political fire for failing to publicly petition for more money specific to Benton Harbor until this fall, three years into the water crisis and only after activists filed an emergency petition urging the EPA to take action where state officials had not.

At a House Oversight Committee hearing last month, Rep. Steven Johnson, R-Wayland, chastised EGLE director Clark for failing to seek money from the Legislature early-on, rather than pursuing slow-moving grant application processes.

“If there is a specific problem,” he said, “...there should be a specific ask.”

But EGLE spokesperson Hugh McDiarmid said the agency lacked authority to step in and unilaterally make fixes at the plant, and the agency was already going beyond its duties in helping Benton Harbor find grant money.

Muhammad challenged the notion that lawmakers couldn’t have acted on their own, earlier. EGLE had notified Benton Harbor’s state elected officials, Sen. Kim LaSata, R-Bainbridge Twp., and Rep. Pauline Wendzel, R-Watervliet, of the high test results starting in 2018, yet Muhammad said they still have never contacted him to offer help.

He blames the slow response on a “toxic” political environment in Lansing, in which both sides would rather see their opponent fail than see problems fixed.

“Politics,” he said, “is don’t ask, don’t tell.”

Pinkney, the water activist, has little patience for any of it. City officials, state regulators and political leaders from both parties dropped the ball, he said. 

He supports an ongoing effort to recall Muhammad, contending the mayor downplayed the crisis in its early days and wasn’t aggressive enough in lobbying legislators for money. And as for Republican and Democratic politicians’ attempts to be “heroes” now, three years into a crisis?

“Right now, if there was an election,” he said, “I don’t even know who I would vote for.” 

Meanwhile, Benton Harbor’s required corrosion control study still has not been completed. Its next round of water samples are due for analysis in December. State officials have announced new funding and plans to remove the city’s lead service lines by spring of 2023.

While he awaits results, Pinkney said he has some advice for the next time a poor community’s water supply is tainted: Officials should immediately declare an emergency, he said, and call for “all hands on deck” to respond.

“There’s nothing more important than a person’s life,” he said.