By Zachary Gorchow
President of Michigan Operations
Posted: May 12, 2023 8:45 PM

The threat of a request to the U.S. Environmental Protection Agency to take over the persistent Benton Harbor lead in drinking water problem from state government prompted the state to shift from having the Department of Environment, Great Lakes and Energy manage the situation to multiple departments, the governor's staff and eventually the governor herself.

Gongwer News Service obtained emails through the Freedom of Information Act covering the time period leading up to and just after the Benton Harbor water crisis publicly intensified and conducted subsequent interviews. While EGLE was working on the problem going all the way back to late 2018 during the administration of Governor Rick Snyder, the threat of a petition to the EPA and the resulting news media coverage was followed by a significant escalation in the state's response and eventual personal involvement of Governor Gretchen Whitmer.

The pace and substance of the state's response appeared to pivot on August 6, 2021.

On that date, Kara Cook, Governor Gretchen Whitmer's policy advisor on energy and the environment, wrote Aaron Keatley, chief deputy director of EGLE, a short, 14-word email with the subject line, "Benton Harbor."

It said, "Please provide a list of what we're doing to respond to issues in BH."

Cook's email did not delve into further detail, but her inquiry was regarding the persistent problems with lead levels in the city of Benton Harbor's drinking water supply exceeding the federal threshold requiring remediation.

With that, a new crisis would hit the Whitmer administration, now halfway into its third year and having already had to confront COVID-19, the Midland flood, civil unrest after the killing of George Floyd and more. And it was one that had uncomfortable similarity – but also some significant differences – from the Flint water crisis that defined the second term of Snyder, her predecessor.

Unlike Flint, where an emergency manager appointed by Snyder made the decision to switch the city's water source from the Detroit system to the Flint River, which precipitated rising lead levels because the city at the state's direction did not add corrosion control treatment, the origin of the lead in water problem in Benton Harbor was more of a mystery. Benton Harbor draws its water from Lake Michigan, considered one of the best drinking water sources in the world.

But like Flint, Benton Harbor is an older city rife with lead service lines and a lack of resources to maintain its water system. And like Flint, Benton Harbor is a lower-income majority Black city, which made the parallels problematic for Whitmer that she, like Snyder, could be subjected to criticism of not helping a minority-majority community.

Whitmer, on the eve of a reelection campaign, would face questions about why a department she oversees had not done more to rectify Benton Harbor's water problems, particularly considering the measures she instituted shortly after taking office designed to assure public health and safety matters rose to the highest levels of the government. The city's water had exceeded the federal action level on lead of 15 parts per billion since 2018.

Eventually, Whitmer and the Legislature would agree to spend tens of millions to replace all lead service lines in the city. Nearly two years later, all but 0.3 percent of lines have been replaced and the city's lead level has been below the federal action level since the start of 2022.

Only 14 total lead lines have yet to be replaced, largely because of property owners refusing access to their property or communications. As of this week, 4,499 out of 4,513 assumed lead service lines were replaced.

The most recent six-month monitoring period, from July 1 through December 31, 2022, showed a 90th percentile in the city of 9 parts per billion in lead across sampling locations, using a sampling standard tougher than federal rules, meaning 90 percent of the test results were at or below 9 ppb.

In 2018, Benton Harbor was at 22 ppb, then it rose to 27 ppb in the first half of 2019 and 32 ppb in the second half of 2019. The readings dropped to 23 in the first half of 2020 before ticking up to 24 in the second half of 2020 and holding there in the first half of 2021. By June 2021, not only had lead levels not dropped from their initial 22 ppb three years earlier, but the range had exploded. The first three monitoring periods had maximum samples of 60, 59 and 72 ppb, respectively. But the next three had maximums of 440, 240 and 889.

Today, the Whitmer administration can point to the millions spent and elimination of lead lines as evidence of success in Benton Harbor, and the city's mayor has long praised the administration's efforts. For several months in 2021, however, there was no shortage of questions about why it appeared to take an outside coalition of groups and its threat to ask the U.S. Environmental Protection Agency to take over management of the city's water to move the governor and her administration into high gear.

Similar to the Flint situation, the state has been hit with multiple lawsuits regarding its handling of Benton Harbor water. The Flint cases eventually led to a more than $600 million settlement. The state's motion to dismiss the Benton Harbor water cases is pending at the U.S. District Court for the Western District of Michigan.

To gain insight into how the Whitmer administration responded to the Benton Harbor crisis, Gongwer News Service requested communications from and to all EGLE employees from July 1 through October 22, 2021, regarding the use of bottled water in Benton Harbor as a result of lead in the city's water. EGLE cited more than 400 hours of labor required to retrieve and process the information and estimated a total cost of $14,313.

In response, Gongwer limited its request to communications on the topic between high-level EGLE employees or others working on the issue.

This time, EGLE waived any fee.

The documents provided contain nothing between July 1 and Cook's email on August 6.

THE INITIAL RESPONSE: Keatley's response to Cook's email came five days after the initial August 6 email. He attached a document that was not included in the documents EGLE provided to Gongwer. He cc'd then-EGLE Director Liesl Clark.

"See attached. We can discuss if needed. I am familiar with some, but not all of these activities," he said.

Six days later, Cook wrote Keatley, who is now the acting director at EGLE. She also sent the message to Melanie Brown, then deputy chief of staff to Whitmer. Clark was cc'd.

Cook alerted the email's recipients that residents, the Natural Resources Defense Council and the Great Lakes Environmental Law Center were going to file a petition with the U.S. Environmental Protection Agency within the next few weeks asking for "remedies that were in place in Flint like filters, bottled water, etc.

"Is there more you or DHHS can do here, especially on communications around filters? We should find time to talk," she wrote.

The realization of an imminent request for the EPA to intervene appeared to escalate the response from the departmental level into the Executive Office. Until that point, the situation was handled within EGLE.

Clark, who was director of EGLE at that time, told Gongwer in an interview last year when she was still director that she has notes on Benton Harbor going back to when she began as director in January 2019. Clark left the administration late last year. Keatley was just named acting director after the previous acting director moved to a new job outside the government.

"It was early on, regular conversation, so it's been on the radar the whole time," she said. "It's absolutely a community that we've been concerned about and paying attention to."

But Nick Leonard, executive director of the Detroit-based Great Lakes Environmental Law Center, and the one heading up the petition to the EPA, said the department's approach was not working and did not address how to protect public health while lead levels were still high.

Groups sent their first letter to EGLE in the fall of 2019, expressing concerns about the department's now year-long response, that actions taken would not bring lead levels down. They offered some recommendations to department staff.

"I remember more or less what EGLE told us is, 'No, we see evidence that it's working. We see evidence that it's bringing lead levels down right now,'" he said.

Understanding that bringing down lead levels in water takes many months or longer, groups monitoring the situation decided to give EGLE time and space to show they had the situation in hand.

But by the summer of 2021, lead levels, far from coming down in the first half of the year, had actually hit some of the highest numbers since the crisis began, Leonard said.

"It just sort of ramped up the sense of urgency and gave validation to the concerns we raised in our 2019 letter of 'Hey, what you're doing isn't going to work quickly enough.' And I think it also made people feel EGLE wasn't being truthful with us," he said.

The center submitted a Freedom of Information Act request early in the summer of 2021 for departmental communications from 2018 to the present day to see what department staff were saying about Benton Harbor water. EGLE staff seemed to have some doubts about the strategy, Leonard said. Further, EGLE continued to allow the city of Benton Harbor to go past deadlines for a new water study to determine the optimal treatment for the water.

"What we saw was basically EGLE not really pushing Benton Harbor along in that respect and really allowing the city to drag its feet as a result and this crisis to go on longer than it should have and not really providing the wrap-around health services we felt were urgently needed," he said.

Groups started to push for quicker replacement of lead service lines and free bottled water.

They were in communication with EGLE. Groups started to push for quicker replacement of lead service lines and free bottled water. When it was determined the city's water study could take another 18-24 months, "It became clear we have to do something else," Leonard said.

The center began preparing its petition to the EPA at the end of July or early August.

Keatley said Benton Harbor did not use corrosion control treatment because it is not required unless there is a lead exceedance. Once that occurred, corrosion control treatment was ordered.

"That takes time for the chemicals to kick in," he said.

As to when a matter staff is addressing rises to his level, Keatley said last year he is responsible for working with six programs that handle inspections, compliance and oversight of facilities in the state and meets with division directors weekly. When a significant issue arises – drinking water, a hazardous waste site, something at that level – he is told.

Once Keatley is involved as the chief deputy director, he would then make a decision on when to inform the director.

"We don't like it here, like you can imagine, being in a situation where we get surprised by things," he said in the interview.

Clark said last year she spoke with the governor's office all the time and would keep staff aware. Starting in 2019, there were check-ins every six months on what communities exceeded the federal action level on lead and which ones were likely to be added to the list and how state government could help those communities.

In an email, Cook said of the list of actions EGLE had taken in Benton Harbor, which was not included in the documents Gongwer received: "This list isn't something I could share externally, right?"

"Prefer not without cleaning it up," Clark responded in an email.

Clark then wrote Keatley on August 26 to see who should put together a document that could be used outside of government.

Keatley said technical materials probably could be shared publicly.

"They are alI a matter of record - but (the) way he described some of the actions may need to be tweaked so it doesn't create unnecessary emotions," he wrote back.

Keatley in an interview last year said he could not recall the specifics that led him to write that sentence.

"We try as hard as we can to make sure that it's factually based, that we've got scientific defensibility behind the statements we make and that they are informative," he said. "And so if there's excess narrative that's not constructive or that doesn't promote that particular value that we have as an agency, then we want to make sure that we address that and get back to the bare bones of what we need to be communicated."

He also said the communication went beyond emails.

"I could see where if you look just at the emails it gets a little confusing in terms of who's responsible for what because everybody involved in this thing whether it's EPA, DHHS, ourselves, governor's office, staff up and down the line of all programs, everybody cares," he said. "We all want to do the right thing and we all want to have input."

THE PETITION TO EPA: On August 19, Cook wrote Clark, Keatley, Melanie Brown and included a few others to alert them the coalition would send the petition to the EPA on August 27. She said it sounded like The Detroit News and the Guardian were planning news stories. She suggested the group find time to talk. The petition eventually would be submitted September 9.

That discussion took place August 23.

Leonard said the hope was the specter of a request to the EPA to take control of the situation would prompt the Whitmer administration to move aggressively. Maybe a petition submission ultimately would not be needed.

Cyndi Roper, senior policy advocate for the Natural Resources Defense Council, contacted Cook, the governor's environmental policy advisor, to give a heads up about the planned petition, Leonard said.

The Whitmer administration did not make Cook available for an interview. Whitmer Communications Director Bobby Leddy, when asked about what led up to Cook's August 6 email to Keatley and any contact from the future petitioners, said part of Cook's job is to communicate with stakeholders in the environmental community.

Roper declined to be interviewed. NRDC spokesperson Margie Kelly said in a statement that the organization would not discuss private conversations with government officials other than to say the organization "used every lever available to us to advocate to solve the Benton Harbor water crisis."

At the time and prior to the funding for expedited lead line removal, Roper was highly critical of the Whitmer administration's handling of Benton Harbor water. Almost two years later, Kelly was more supportive.

"Once the petition was filed and the governor's office took over day-to-day operations, the state moved swiftly to replace the lead lines and deliver bottled water," Kelly said. "The governor ordered a whole-of-government approach to ensuring safe water for Benton Harbor residents and issued an executive directive to provide bottled water to residents as the city's lead pipes were replaced on an expedited timeline."

Leonard said the initial response from the Whitmer administration was lukewarm.

At first, the proposal from the administration was replacement of all lead lines in the city in five years, and there was no bottled water commitment. The groups wanted to use the Flint water crisis as a model of how to respond, Leonard said.

"We were seeing a lot of missing pieces," he said.

On September 5, Cook wrote Clark, Keatley and EGLE Senior Deputy Director Amy Epkey to thank them for their efforts. She said an announcement was close on initial investment in lead service line removal and actions to help protect Benton Harbor residents while lead service lines are removed. She asked for feedback on a "broad overview of what I've proposed to my team for an announcement for Tuesday and my list of to-dos that I'll need your team's help with." That document was shown as attached to the email.

The document was not included in what Gongwer received. The next page of the documents after the email said, "Record withheld for privilege."

Cook also asked if the EGLE leadership would be comfortable sharing the materials with Department of Health and Human Services Director Elizabeth Hertel and another employee "for their awareness and comments and well." Epkey said she supported sharing it in a response as did Clark.

Cook then asked the EGLE team if there was a timeline that could be set for lead service line removal for the city, if an expedited schedule was possible such as one year.

EPA ASKS QUESTIONS, AND DHHS/GOVERNOR ORDER BOTTLED WATER FOR CITY: Whitmer announced on September 8 a recommendation to spend $200 million statewide removing lead service lines, including $20 million for Benton Harbor. This was one day before the filing of the petition with the EPA.

Four days after the groups filed the petition, Tera Fong, director of the Water Division for EPA Region 5, which oversees Michigan, contacted Eric Oswald, director of EGLE's Drinking Water and Environmental Health Division, to ask for EGLE's "assistance in collecting additional information on the water filter program that the state sought to establish in Benton Harbor."

Fong asked for direction from EGLE or documents describing the scope and requirements of the program, educational materials for the program, any assessments of the program so far and any additional feedback about challenges EGLE has faced with the program.

Fong closed with a sense of urgency.

"Given the potential health implications, we would appreciate your prompt response and sharing of any existing and readily available materials as soon as you are able. If needed for expediency, especially to avoid having to take time to create new materials for #4, I'd be happy to schedule some time to discuss as well," she said.

Oswald forwarded the message to Kory Groetsch at the DHHS and George Krisztian at EGLE asking them to work up a response to EPA within a day. He cc'd Keatley, who wrote back asking him to run a draft response by him before sending it to the EPA.

On September 20, Jeff Lippert of the EPA emailed Regina Strong, the state's environmental justice public advocate, to ask if EGLE had an estimate of what it would cost to supply bottled water to Benton Harbor. It's unclear what the outcome was of that message, other than that Strong asked for more specifics.

However, later that day, Orlando Todd of DHHS wrote Strong as well as Kris Schoenow, executive director of the Bureau of Community Action and Economic Opportunity in DHHS.

"I just spoke to Director Hertel and she stated the Governor's Office would like to make bottled water available to Benton Harbor Residents (more information forthcoming)," Todd wrote. "Kris, Director Hertel asked if the community agencies would be able to assist with distribution. I told her based on one of our previous conversations, I believe that is possible considering the community agencies were involved in Benton Harbor's water distribution in the past. Regina she asked me to let you know, you will more than likely be hearing from the Governor's office regarding this matter."

Strong was ecstatic, calling it "fabulous news."

Hertel, in an interview last year, asked when DHHS and she got involved, recalled the concerns raised by the groups behind the petition to the EPA about some of the drinking water sample test results. There were some outlier samples with high results, and those concerned her and DHHS, Hertel said.

Filters generally work but a couple of the lead samples were significantly higher than what the filters were rated to handle, she said.

"That caused enough concern to say, 'Listen, we're still in progress, Benton Harbor's still in the process of working toward this, they're making progress, but in the short term as we continue to see if the water quality is improving, we should make bottled water available to people so they can ensure that the water is meeting these water quality standards,'" she said.

The day after Hertel informed others that the governor's office would assure bottled water delivery, Alexis Travis, senior deputy director for Public Health Administration in DHHS, wrote Epkey regarding plans for bottled water distribution in Benton Harbor. She had a number of questions on who would pay, the duration of bottled water availability, quantity of water per household and more. Epkey said EGLE had the funding to pay for the first $121,000 and that the initial purchase would last two weeks with further details on the duration to be worked out.

The initial two-week plan concerned organizations behind the petition.

Clark's notes regarding a September 22 EPA meeting with the petitioners and EGLE showed that Cyndi Roper of the Natural Resources Defense Council questioned the state's plan to end emergency water on October 8 given the EPA's commitment to emergency water distribution until everyone was sure filters were working.

TENSION IN ADMINISTRATION AMID BOTTLED WATER GLITCHES: Late on October 4, Diane Tooman, director of agency operations, reporting to Chief Operating Officer Tricia Foster in the governor's office, wrote several top officials, including Clark, Hertel, Treasurer Rachael Eubanks and then-Department of Technology, Management and Budget Director Brom Stibitz to say that a water delivery truck did not arrive in Benton Harbor that morning as scheduled.

Foster wrote the next day that "it seems we still have a water delivery problem through the EGLE contract – missed at least two delivery times now." Foster said alternatives needed to be determined as soon as possible. Michelle Lange, now the DTMB director, said DTMB had taken over as backup on water delivery. Epkey followed up with detailed plans for water distribution in past and upcoming days.

On October 5, Clark raised the question of how long water distribution would continue in an email to Epkey and Foster.

"My understanding is that water distribution will continue until we have the filter study. We don't have a timeline to know when the study will be done, expect that tomorrow," she said.

On October 6 came the news that DHHS was advising Benton Harbor residents to use bottled water for drinking and making formula, not tap water. At 12:36 p.m., Strong, the environmental justice advocate, wrote various interested parties about the recommendation and invited them to a special meeting of the Michigan Advisory Council on Environmental Justice.

Sylvia Orduno of the Great Lakes Environmental Law Center replied that two hours notice was "completely unreasonable and irresponsible, especially to discuss a public statement that surely was not drafted in the last 24 hours. A respectful and sensible invitation would have provided this Advisory Council with more notification, along with invitations to residents of Benton Harbor and the petitioners to respond and provide additional context for the emergency petition to EPA on EGLE's failings."

The meeting did take place via Microsoft Teams, however.

Based on a document that looked like the minutes of the meeting, Clark provided an overview of past and present EGLE actions. Hertel explained the decision to provide bottled water. The document said, "given some of the circumstances in test results in Newark and evaluations over the last year, DHHS has determined residents in Benton Harbor should not ingest their tap water."

She also said residents should understand that the state cannot guarantee that filters could remove some of the levels of lead coming out of faucets in the city.

Hertel, in an interview, asked if the state should have started bottled water sooner said it was hard to say when the right time would have been. She noted that the truly large outlier lead results that raised concerns about filter adequacy did not show up until the summer of 2021.

"We made the decision that we made because of the data that we were seeing at the time," she said. "Was that the right time or wrong time? I couldn't tell you."

The state overall demonstrated quick action in Benton Harbor, Hertel said.

David Knezek, DHHS chief deputy director for administration, explained that EGLE was in charge of bottled water until October 8 at which point DHHS would begin handling it.

One of the immediate problems was staffing the water distribution sites. On October 7, Epkey said EGLE staff was on site and helping. They reported the "line of cars was extremely long before 4, and WOOD TV 8 is on site."

Foster indicated the lines were unacceptable.

"How can we rectify promptly and get water into the neighborhoods? Ming?" she said.

"Ming" was a reference to the Michigan National Guard.

Knezek said the Guard could help, possibly reaching every door in the community in one day with 60 members of the Guard. He went over a variety of efforts to address the lines and offered to make a call to help get the Guard in place next week.

Clark raised a concern, however. "I'm very hesitant about the optics on MING," she said. She did not offer further details, and the topic of the guard did not come up in any other emails.

Epkey warned that having EGLE staff continue to distribute water was not sustainable.

Clark in her interview last year was asked about her hesitancy in deploying the Guard.

She said she had heard from community members and advisory groups that "there is a real hesitancy in our communities of color to having the National Guard knocking on doors and handing out water and so I wanted to make sure I lifted up what I had heard in conversations with community members."

'WHOLE OF GOVERNMENT RESPONSE': It was clear from the emails that multiple officials from the governor's office were now involved in the response. DHHS was sending a daily report to the governor's office on behalf of all agencies. If prior to Cook's first email Benton Harbor was purely an EGLE matter, that was no longer the case.

On October 14, Whitmer announced the city would have indefinite access to free bottled water and free or low-cost services like drinking water testing and health care as the state accelerated replacement of lead service lines in the city.

At the time, activists who had sharply criticized EGLE's handling of Benton Harbor water welcomed the moves announced that day but made clear the actions should have happened long ago.

"It is long overdue," Roper of the NRDC said in an interview at the time. "There is no scenario where the community should have gone three years drinking high levels of lead while the Environment, Great Lakes and Energy department was tweaking chemicals going into the drinking water and not doing everything in its powers to educate residents and to ensure that they had a safe source of drinking water. Clearly the water was causing lead to be released into the drinking water."

To the question of how EGLE could have moved faster, Clark in her interview said the issue was about lead service line removal.

"We really felt like this community had been under an action level exceedance for an extended amount of time. The best answer is get rid of the lead service lines," she said.

As to how much the petition from the groups to the EPA galvanized EGLE's decision-making, Clark said: "The petition, I think, focused attention. That's how I would describe it. Upon that filing, it really focused attention."

If the petition did not galvanize the all-out response groups had sought, it did produce something in early October that did, Leonard said.

The petition got the attention of the governor's office and generated a wave of local news coverage, Leonard said. That in turn led to an eruption of national publicity in the first two weeks of October – The New York Times, CBS, ABC, National Public Radio, The Washington Post and more all covered what was happening in Benton Harbor.

It was during these first two weeks of October when the Whitmer administration urged residents not to drink the water, pledged to make bottled water available indefinitely and Whitmer got more personally and visibly involved by issuing an executive directive on October 14 directing a "whole of government response." It was also on October 14 when Whitmer sped up the timeline for 100 percent lead line replacement to 18 months, and Lt. Governor Garlin Gilchrist visited the city to discuss the administration's plan. Whitmer made a surprise visit to the city October 19 for the first time to address the crisis personally.

"It was shortly after (the national media coverage) that the governor came out more directly. We really started to see the things we wanted to see," Leonard said. "The petition sort of got us a little way there. But then the petition led to the media coverage, which really pushed it across the finish line."

Benton Harbor Mayor Marcus Muhammad said the focus on Whitmer's response and that of EGLE's handling has been both unfair and inaccurate. EGLE, and its predecessor Department of Environmental Quality, had been working the problem all the way back to 2018, he said.

"I think that the narrative is skewed in some respects because it began with 'nothing is being done' – which I challenge," he said. "This wasn't something the governor created. It was inherited. We were engaged with the DEQ before her."

THE EPA, STATE EXCHANGES: The exchanges between EPA and EGLE were a mix. It was apparent that the potential for the EPA to exert authority worried EGLE, yet there were also clear indications that each agency ran potential public statements by the other so as not to catch the other off-guard.

On October 15, Hertel wrote Elizabeth Cisar of the EPA, with Clark and Knezek cc'd, to thank her for a discussion and presentation on October 14 and said she looked forward to working more closely with the EPA on the Benton Harbor response. Cisar responded, thanking her for taking the time to meet with EPA staff.

"I look forward to continuing to be in close communication with you and LiesI. I think that will be critical to our ability to respond effectively in Benton Harbor," she said.

Hertel said she did not know when asked if the EPA's involvement drove the state's actions in any way. However, she also said the EPA had long been involved.

"From where I sit, I feel like EPA is very involved in everything and had been up until then as well," she said. "So it didn't feel to me like a situation where all of a sudden EPA stepped in. I think all of these issues are a partnership from the very beginning."

Keatley in an interview described the EPA's role as "extremely limited" in Benton Harbor. The EPA has no jurisdiction on alternative water supplies, he noted, only to assure EGLE implements the Safe Drinking Water Act with the ability to do so themselves. Even then, Keatley said the criteria for EPA to take over were never met, he said. EPA never did assume control.

"In fact, we invited them to come in and be a participant because we wanted to take advantage of their expertise, their opinions, their processes and bring them in as partners, so that worked out well for us. So you'll see a lot of trails between them about things like bottled water and filters and stuff like that," he said. "Their role on filters, it wasn't even a legal role, but their technical role on filters was to do the study on our behalf. They have expertise nationally. They have a great lab down in Cincinnati on lead lines. They were the right people to go to, to get that answer about whether those filters were working, so we needed their partnership on that."

Of the EGLE-EPA email exchanges, Keatley said, "So as you see those exchanges between us, you're going to have to filter between what is them being helpful but not necessarily having a legal role in that area vs. what things were their legal steps they were taking that they had jurisdiction over."

EGLE redacted several items, citing attorney-client privilege or the exemption for frank communications in the Freedom of Information Act if the agency determines the importance of encouraging frank communications outweighs the benefits of making them public.

One item withheld under attorney-client privilege was an email from Peter Manning, division chief of the Environment, Natural Resources and Agriculture Division in the Department of Attorney General. It was sent October 18 to Clark with the subject line "Chronology" and included an attachment that was dated September 15 titled, "_EGLE Response – DRAFT".

On October 19, Cheryl Newton, the acting regional administrator for EPA Region 5, sent Clark a document described as "follow-up from our discussion last week."

The letter was carefully nuanced to thank the state profusely, expressing EPA's appreciation for the state's ongoing efforts to protect public health in Benton Harbor. It described the actions by EGLE and DHHS, as well as the executive directive Whitmer issued on October 14 directing a "whole of government" response to the Benton Harbor crisis as "significant and important steps to address the endangerment to public health from drinking water from high lead levels."

The letter, however, also said "as part of our oversight responsibility, EPA will closely monitor" the state's commitment to provide bottled water and filters to residents. It seemed to say, in essence, yes, the state has primary enforcement authority, but EPA is watching and will be involved now.

"As we discussed, EPA needs additional details regarding the State's plan for alternate water and filter distribution," Newton wrote. "While our early emphasis sought information on the State's filter distribution plans, to which EGLE responded in emails dated September 16th and 21st, we have also been seeking more detailed information on the bottled water delivery plan and overall communication materials since Michigan's decision to provide this resource. From our discussions and our participation in command calls, we recognize the complex logistics involved. We also understand that within the overall framework of the State's approach, important details on supplies, delivery, and transport require frequent updates to continue adjusting to needs and conditions on the ground. As part of our oversight role, EPA will continue to engage on this aspect, offer technical assistance, and if problems arise, we will not hesitate to exercise our independent authorities to ensure that the residents of Benton Harbor are provided safe drinking water."

The letter then asked for the state to confirm a variety of items as soon as possible.

"We also appreciate your staff's cooperation in conducting a joint inspection of the Benton Harbor Public Water System during the week of September 20th to assess the compliance status of the system," she wrote. "We are currently considering our enforcement options to address any violations or deficiencies that are identified. We expect to work with you and the Benton Harbor Public Water System to address any issues. We believe a joint approach will result in consistency of obligations and a better result."

Clark forwarded the email to Cook with no commentary.

WHITMER ADMINISTRATION, UNDER FIRE, SCRAMBLES TO FIND MESSAGE: On October 20, Tiffany Brown, then the communications director for Whitmer, emailed Clark. There was no text but an attached file, titled "Key Messages for Ensuring Benton Harbor Has Safe Drinking Water."

This came one day after Benton Harbor declared a local state of emergency and Whitmer made a visit to the city that was not announced in advance beyond southwest Michigan.

The governor's office announced after the visit that Whitmer was calling for the Legislature to pass an additional $11.4 million to enable the replacement of all lead service lines in Benton Harbor. To that point, $18.6 million from the state and federal governments had been allocated. This email also came on the same day that the Whitmer administration said the governor would not be declaring a state of emergency for Benton Harbor. And it was one day before Clark would go before the House Oversight Committee to answer questions on the crisis.

The key messages largely focused on the critical need for safe drinking water and defending/outlining the actions the governor and her administration had taken so far and would take in the future. It included several talking points to potential questions.

There was an example Q&A in the document.

For example, on the possible question, "Why did it take the state three years to act," the answer focuses on the state and local governments working since the first lead level exceedance in 2018 to remedy the situation and then says: "But we agree we have to move faster and do more to protect Benton Harbor families. Every Michigander deserves access to safe drinking water. The actions we have taken with the city to date haven't yielded the results we need to keep people safe, which is why the administration is bringing a whole-of-government approach to this challenge."

After this answer, there was guidance on what to say "if pushed." Under the "if pushed" section, the document says: "What matters right now is getting the people of Benton Harbor safe drinking water, and we've got a plan to get it done. Everyone agrees we have to move faster, and that's what this executive directive does – it brings the kind of urgent, whole-of-government approach we need. Many efforts have taken place since 2018 including but not limited to educational outreach, regular water sampling, mobile blood lead testing events, nursing case management of children who have elevated blood lead levels, health care provider outreach, filter distribution, free lead environmental investigations and lead abatement, and community training."

The suggested answer to why didn't the state do something differently was not a direct answer.

"We need to take a step back for a moment and recognize that Benton Harbor is not alone.

"There are cities across Michigan and across America with drinking water problems," the document says. "This is an infrastructure crisis that is decades in the making. Here's the good news: the state has adopted some of the strongest drinking water laws in the country, and we are taking action now to replace the pipes in Benton Harbor and provide safe drinking water. But we know we have more work to do as a country. And that's why it's so important that Washington comes together to pass the bipartisan infrastructure bill, so we can get help to communities like Benton Harbor right now."

This was similar to how Whitmer responded to a reporter's question November 4 about whether she thought measures she earlier put in place to prevent a Flint-style water crisis – advocates for environmental justice and clean water as well as procedures for state employees to follow if they spot a danger to the public – worked in the case of Benton Harbor.

Whitmer did not answer directly.

"I hear the question and let me just say this," she said. "We're taking it very seriously. We're providing bottled water. We're working closely with everyone from Congressman Upton to conversations I had just this week with people like (U.S. House Majority) Leader Steny Hoyer."

WAS THE OUTCOME IN BENTON HARBOR A SUCCESS?: Muhammad said the replacement of nearly every lead line in Benton Harbor in 18 months was a tremendous success and one that other governments should replicate.

"What started out as a negative I think has turned into a positive," he said. "Benton Harbor's a model and example of what to do, how to do."

Muhammad knows of the criticism directed at EGLE. He said he rejects it.

"The DEQ or EGLE can say we have a problem in Benton Harbor. The lead exceedance has gone on three years. But does EGLE allocate money? They don't," he said. "I don't think it's fair to blame one agency. State government is not one person."

A state agency like EGLE can diagnose a problem but it cannot unilaterally come up with the tens of millions needed to fix it, he said. Whitmer, the Republican Legislature and then-U.S. Rep. Fred Upton got the money, Muhammad said.

"When the money came in, the problem was solved," he said.

Muhammad also pointed to the 2022 election results.

Republicans hit Whitmer hard on Benton Harbor water. There were legislative hearings. Republican gubernatorial nominee Tudor Dixon visited the city about a week before the election.

The heavily Democratic city, however, did not budge from Whitmer's side, giving her 93.4 percent of its vote. Percentage-wise, that was up from the 92.5 percent she received in 2018 though turnout did drop in the city from 2,378 total votes to 1,703.

"Ninety-five percent of the vote in Benton Harbor," he said, rounding up a bit. "So if somehow the residents of Benton Harbor felt like or thought that she was guilty of gross negligence and malfeasance and neglectful, I think the results would have possibly looked different."

Leddy, Whitmer's communications director, was asked if the governor considered Benton Harbor a success or if it took longer than it should have.

"The governor issued an executive directive to ensure a whole-of-government response and provide safe drinking water for the people of Benton Harbor," he said. "Under the governor's directive and in partnership with the Legislature, we had all the tools needed to begin replacing 100 percent of lead service lines, distributing free bottled water and providing additional testing and health services without declaring an emergency. This is a perfect example of what can be accomplished when everyone is working together to solve problems. The accelerated campaign to replace aging lead water lines in the city of Benton Harbor was completed five months ahead of schedule, on budget and at no cost to residents."

Leonard, however, said he did not consider Benton Harbor a success story.

"Once they got moving, it was the kind of response that you would like to see," he said of the state. "But I wouldn't categorize it as a success story given the long delay. It's hard to call anything a success story when you have high levels of lead for that long."

Benton Harbor was ripe for a lead in water crisis, Leonard said. It had large numbers of lead pipes combined with a city struggling with its water treatment plant. Not using corrosion control treatment in those circumstances should have prompted EGLE to realize "this is a ticking time bomb."

In 2025, a new administrative rule promulgated after the Flint water crisis will create a new state action level for lead of 12 ppb, tougher than the federal one. Many more communities are expected to be found in exceedance. It speaks to the need for the state to address some statutory gaps, Leonard said.

Currently, there are 10 jurisdictions in the state, mostly small water operators, with lead levels in their water in excess of the 15 ppb federal action level. Some of those are individual condominium complexes or single buildings. As far as communities, Leslie and Eastpointe are the two in excess currently.

There is nothing in statute to trigger a public health response, like bottled water and other supports, when a community hits a threshold of lead in its drinking water. That should be fixed, Leonard said.

Going back to late 2021, an EGLE spokesperson said more could have been done to communicate with residents about filter installation and maintenance.

EGLE spokesperson Hugh McDiarmid Jr. said this week the department also has learned valuable lessons about lead line replacement as efforts to remove those lines occur in other communities.

Hiring good contractors with good contracts to ensure quick, professional work that is minimally disruptive to the community is one lesson, McDiarmid said. Another is to encourage municipalities to make lead service line removal mandatory. Also key is doing everything possible to educate the community about what work will happen and why and what residents can expect before, during and after line replacement, he said.

Leonard said he has regrets about Benton Harbor. He said he wishes he began pushing sooner for action and trusting EGLE for too long.

"It sort of speaks to the fact that if you get enough attention, you can make something happen," he said.