Lead has been recognized for thousands of years as a powerful and dangerous neurotoxin, whose widespread use in water pipes in ancient Rome has been considered by some scholars as a factor in the empire’s demise.
And yet, even now, lead in drinking water remains a U.S. public health scourge.
People in Benton Harbor, Mich. — a majority Black city on Lake Michigan, about 100 miles from Chicago — have for years been exposed to levels of lead in their tap water higher than what the federal government considers acceptable.
Today, lead levels have fallen but Benton Harbor residents cannot safely use tap water for drinking, cooking, brushing teeth or mixing infant formula.
The problems have sparked outcry and criticism, with many wondering why regulators were so slow to respond.
Activists and residents argue the yearslong state response would have continued to plod along and EPA wouldn’t have become involved last year without their agitation. Scores of internal agency emails and memos E&E News obtained under the Freedom of Information Act show activists pushing the agency to intervene before they filed a petition for emergency federal action.
“I feel confident it wouldn’t have happened,” said Elin Betanzo, an engineer and former EPA official who signed the petition. “We have a well-documented, three-year period with a majority Black community drinking high levels of lead in the water with minimal effort to educate the community and provide a safe source of drinking water.”
She added, “I consider that an emergency.”
But EPA officials, fresh off the searing crisis in Flint, Mich., in 2014, which had high levels of lead in the drinking water, said they were on the case with the state in Benton Harbor. EPA maintains the Safe Drinking Water Act, or SDWA, puts the states in charge.
Robert Kaplan, counsel for EPA’s Region 5 Office in Chicago, said the agency monitored and guided Michigan as it took aggressive action to address the lead crisis.
Michigan’s Department of Environment, Great Lakes and Energy, or EGLE, has also defended its response. The agency in a recent lawsuit, which was filed by Benton Harbor residents, argued it went beyond minimal legal requirements to ensure city officials installed corrosion control treatment years before it was required. And because it wasn’t clear how long that would take, EGLE said it provided free water filters, required the city to notify the public of potential lead in the system and educated system users.
What’s more, EGLE said it repeatedly consulted with EPA and helped the city obtain a $5.6 million federal grant to jump-start removal of its lead service lines, more than half of which the state says have already been replaced ahead of schedule.
Kaplan said EPA gets directly involved in drinking water enforcement if a state asks for help or if the federal agency sees a threat to public health. EPA took enforcement action in Benton Harbor after EGLE asked for a joint state and federal inspection of the water system last year.
“EPA was involved, we definitely refocused and ramped up based on both the state request for us to do so, and the petitioners’ request,” Kaplan said. “It shouldn’t [take] a crisis for EPA to be involved, and it didn’t. We are involved in communities as appropriate. We’re thankful that people lift up issues to us, it’s not an adversarial situation.”
‘Slow to react’
Benton Harbor’s experience is far from isolated. There are hundreds of cases in which lead levels exceed federal “action levels” across the Midwest, even though scientists say there’s no safe level of lead.
In Region 5 alone, about 350 communities have had lead exceed action levels over the last three years, a number that’s fallen from more than 500 since 2014 on a comparable three-year basis, EPA says.
President Joe Biden has made tackling lead a top environmental justice policy goal, setting aside $15 billion in the infrastructure package to remove lead service lines — a big lift given that there may be upward of 13 million lead pipes carrying drinking water to homes and businesses across the nation (Greenwire, July 7, 2021).
And last year, EPA delayed Trump-era revisions to the Lead and Copper Rule, which governs the agency’s reaction to lead-contaminated water, to hear more from underserved and disproportionately affected communities (E&ENews PM, March 10, 2021).
Yet crises that have emerged in cities like Flint and Benton Harbor show how gnarly and systemic lead contamination can be until that aging infrastructure is removed.
When high lead levels were detected in 2018, Benton Harbor was in financial trouble and had just emerged from six years of oversight by a state-appointed emergency manager. The city’s water plant, which pulls raw water from Lake Michigan, was referred to by state regulators that year as “historically neglected” and flagged for a host of safety violations.
The state said it stepped in shortly after the high lead levels were detected and hired an outside firm to run the water system and distribute filters, while the city began treating the water with chemicals to prevent lead from leaching from pipes into the drinking water.
But some say the complex and costly job of finding and removing the lead pipes, coupled with the structure of federal law — and the many inefficiencies baked in — mean that cities, states and even EPA are slow to react when a community does find elevated lead levels.
While EPA has the authority under SDWA to ensure state compliance, states — except for Wyoming and some tribes — are given the first crack at dealing with lead contamination.
Betsy Southerland, a former career official in EPA’s Office of Water, said states and utilities can be given months to tweak corrosion plans to lower lead levels in drinking water, a time-suck that’s made worse if those plans fail. Adding to that is a cumbersome reporting system that allows utilities to report lead data to states, which in turn report data to EPA.
“There is time and detail lost between each one of those transfers,” Southerland said. “The whole system is slow to react.”
Betanzo said state and federal lead and copper rules are “horrible” and give water systems long periods of time to work on corrosion control studies and treatment, an added scourge to cities like Benton Harbor that suffer from waning population and, therefore, customers who use the system and pay for upgrades.
What’s more, EPA doesn’t get involved every time a water operator detects lead levels in drinking water that surpass the “action level exceedance,” meaning the system’s 90th percentile number is over 15 parts per billion of lead in the water.
That’s because such an exceedance isn’t illegal. Instead, it alerts system operators that something’s wrong and the amount and type of chemicals put into the water to prevent corrosion — and therefore, lead contamination — may need to be tweaked.
Still, EPA and the state of Michigan have come under fire for falling short in the past.
After the lead crisis emerged in Flint in 2014, EPA’s response was “delayed” and the agency failed to use its management controls to facilitate a more informed and proactive response, according to a 2018 report from EPA’s Office of Inspector General. Today, the IG is investigating the pace of EPA’s response in Benton Harbor (Greenwire, Feb. 18).
EPA’s Kaplan said the Flint crisis prompted the agency to take a closer look at the overall triggers of federal enforcement and how much deference is given to states, adding there’s an “ongoing discussion” about when federal regulators can take enforcement action.
‘Intervention is necessary’
EPA took enforcement action in Benton Harbor in the fall of 2021, issuing an emergency order that called on the city to bring its water system into compliance with SDWA, and pointed to violations and deficiencies at the plant found during the joint federal-state inspection (E&E News PM, Nov. 2, 2021). EPA cited a laundry list of problems, including faulty meters and missing records.
The agency called on the city to improve the use of chlorine to disinfect and orthophosphate to control for pipe corrosion, implement stricter requirements for monitoring residual disinfectants and byproducts, and make filter repairs at the treatment plant. A state of Michigan report in March found the filters are lowering lead levels but not being used properly in many cases (Greenwire, March 4).
Even so, EPA continues to face scrutiny. Sen. Gary Peters (D-Mich.), chair of the Homeland Security and Governmental Affairs Committee, requested an accounting from EPA Administrator Michael Regan in January on the agency’s response and how the public was informed. EPA responded with a table of lead sampling results for Benton Harbor and said it will continue to monitor the situation and “take further actions as appropriate and necessary” to prevent lead exposure.
And while EPA says its order was based on a planned probe of Benton Harbor’s water plant, advocates insist their behind-the-scenes calls for action spurred a faster federal and state response — and other communities face the same burden.
In an Aug. 6 email, Sylvia Orduño, a Detroit resident and environmental activist, thanked EPA officials and Regan for visiting Flint and Detroit the month prior and pointed to the situation in Benton Harbor as one of the environmental justice challenges in Michigan requiring “immediate” federal intervention.
“First and foremost, we are compelled to draw your attention to the dire situation in this small town on the southwest coast of Lake Michigan,” Orduño wrote. “For the last three years, this community of 9,843 residents — 84.7% black and with a 45.4% poverty rate — has experienced three years of drinking water lead action level exceedances.”
Orduño added, “We believe Region 5 intervention is necessary.”
The Rev. Edward Pinkney, a longtime community organizer who chairs the Benton Harbor Water Quality Council, in an Aug. 9, 2021, email thanked EPA Region 5 officials for meeting with him and officials from EGLE five days prior, but expressed surprise that they didn’t mention the city’s drinking water had exceeded lead action levels for a sixth time in a row — data that was released shortly after they met. Pinkney noted that water samples were supposed to be sent to EGLE on July 10.
“The 25-day-delay in notifying the residents of Benton Harbor does not seem to be appropriate to the scale and scope of this ongoing water quality emergency,” wrote Pinkney, adding that only one media outlet had reported the public advisory. “As in so many lead action exceedances before, this magnitude of outreach is insufficient.”
On Aug. 24, 2021, Pinkney wrote EPA again — this time with added urgency: “It is time something get done in Benton Harbor. The residents are crying out for help.”
Days later, both the state and EPA acted.
Casey Katims, then-EPA’s deputy associate administrator for intergovernmental relations, wrote in a Sept. 7, 2021, email to more than a dozen agency staffers including EPA Assistant Administrator Radhika Fox, that the agency had learned from Democratic Gov. Gretchen Whitmer’s office that a petition for emergency action would be filed.
On Sept. 9, 2021, Nick Leonard, executive director of the Great Lakes Environmental Law Center, filed the petition, attached to an email that was sent to Regan.
Leonard and Pinkney credit the petition with expediting the delivery of bottled water to residents throughout the city and truncating the timeline for removing lead service lines from five years to 18 months under the Whitmer administration.
Leonard said it’s an “open question” under federal law as to when EPA takes enforcement action, and such decisions appear to be made on an ad hoc basis.
“In the meantime, what’s the responsibility of government to make sure that all residents have safe drinking water and basically what’s their responsibility for finding alternative sources such as bottled water or filters?” Leonard asked.
“What happens when this comes up again? Maybe the response is quicker and more robust, maybe it’s even slower, it’s just something that needs to be thought through more and systematized more,” he said.
Reporter Kevin Bogardus contributed.
