Suit alleges ‘deliberate indifference’ from govt. leaders over Benton Harbor water crisis

Residents sue state and city leaders for $76M

By: - November 17, 2021 4:55 am

Gov. Gretchen Whitmer meets with Benton Harbor residents about water issues, Oct. 19, 2021 | Whitmer office photo

Updated Nov. 18, 12:21 p.m., with the correct location of Morgan & Morgan.

A group of Benton Harbor residents filed a federal lawsuit against Gov. Gretchen Whitmer, Benton Harbor Mayor Marcus Muhammad, and other state and city officials last week, accusing the government leaders of “deliberate indifference” and alleging they failed to adequately warn residents of elevated lead levels in the city’s water for years.

The lawsuit, which seeks class action status, was filed Nov. 10 in U.S. District Court in Grand Rapids. It comes after state officials last month advised Benton Harbor’s nearly 10,000 residents — the majority of whom are Black — to drink bottled water because of elevated lead levels in the city’s water. Lead was first detected in samples of Benton Harbor water in 2018.

The plaintiffs are seeking about $76 million in financial compensation, as well as a variety of relief actions, including blood testing for all city residents, in-home water testing, and the creation of a community center specifically designated for children and adults dealing with learning impairments that can be caused by exposure to lead.

“Defendants’ acts and omissions shocks the conscience and shows deliberate indifference to the [plaintiffs’] constitutional rights, resulting in harm to their health, both physically and emotionally,” the 63-page complaint states.

The lawsuit was filed by eight adults — Benton Harbor residents Doretha Braziel, Kendesha Jones, Iesha Jones, Michael Brigham, Rebecca and Stacey Branscumb, Stacey Branscum, Jr. and Emma Kinnard — and eight children and grandchildren of the various plaintiffs. They are represented by Morgan & Morgan, which is headquartered in Florida, and the Detroit firm Edwards & Jennings.

The case is assigned to U.S. District Court Judge Janet Neff. If Neff grants the suit class action status, essentially every Benton Harbor resident would be eligible to receive money if the plaintiffs win. A federal judge last week approved a $626 million settlement for Flint, another Black-majority city where residents suffered from lead-poisoned water.

In the suit, Benton Harbor residents accuse a long list of state and Benton Harbor officials of not properly notifying them of the elevated lead levels found in city water for about three years. 

The first documented test reporting elevated lead levels in some Benton Harbor homes’ tap water was in 2018, when then-Gov. Rick Snyder — a Republican who is not named in the lawsuit — was nearing the end of his tenure as governor. At that time, samples of water from Benton Harbor homes tested positive for elevated — what the state and federal governments refer to as “actionable” — levels of lead. (Medical doctors repeatedly point out that there are no safe levels of lead; exposure to any amount of lead can lead to both immediate and long-term health problems, including brain damage.) 

There have been six state tests that reported dangerously high levels of lead in some Benton Harbor homes since 2018. In the most recent round of testing from August, 11 out of 78 sampled homes tested at levels above what’s known as the U.S. Environmental Protection Agency’s “action threshold,” or 15 parts per billion (ppb), which is how water lead levels are measured. 

“Since at least 2018,” the government officials, including Whitmer and Muhammad, “treated the evidence that the water running through lead service lines in the City of Benton Harbor was poisoned with high levels of lead with deliberate indifference,” the lawsuit states. “Plaintiffs, many of whom are children … have been, and continued to be exposed, to the extreme toxicity of lead, causing an ‘imminent and substantial endangerment to their health.’”

Benton Harbor Mayor Marcus Muhammad at an Oct. 21 House Oversight Committee hearing. | Anna Gustafson

The following defendants are named in the suit: Whitmer; Muhammad; Liesl Clark, director of the Michigan Department of Environment, Great Lakes and Energy (EGLE); Elizabeth Hertel, director of the state Department of Health and Human Services (DHHS); Eric Oswals, EGLE’s drinking water division director; former DHHS Director Robert Gordon, who resigned in January; Ellis Mitchell and Darwin Watson, Benton Harbor City Manager Ellis Mitchell, former Benton Harbor City Manager Darwin Watson; former city water plant superintendent Michael O’Malley; Elhorn Engineering Company, which worked with the city to address corrosion in Benton Harbor’s lead pipes; and F&V Operations and Resource Management, a private company that currently runs Benton Harbor’s water treatment plant.

Whitmer, Hertel, Clark and other public officials named in the suit said they or their respective departments — Hertel, for example, wasn’t leading DHHS when the first elevated lead levels were detected in Benton Harbor — immediately responded to the city’s water crisis. They said they held press conferences and public meetings, distributed free water filters to residents, tested the water at all Benton Harbor schools and secured funding to replace the lead water lines. 

State officials also said they also immediately began working with Benton Harbor leaders to address the lead pipe corrosion. In March 2019, the city, at the urging of EGLE, began adding what’s known as a “corrosion inhibitor” to the lead pipes in an effort to stop lead from entering the water.

The Whitmer administration’s Oct. 6 announcement that Benton Harbor residents should drink bottled water, which the state provided, followed concerns that the filters were not effectively removing lead from residents’ drinking water, according to state officials. The governor also announced in October a plan to replace all of Benton Harbor’s lead pipes within 18 months.

Rev. Edward Pinkney, a Benton Harbor pastor who has led efforts to distribute free bottled water in the city since 2018, said the state’s announcement coincided with the Benton Harbor Community Water Council and 20 other individuals and organizations filing a Sept. 9 petition with the Environmental Protection Agency (EPA). Other petition filers included the National Resources Defense Council, the Great Lakes Environmental Law Center, and Dr. Mona Hanna-Attisha, a Flint pediatrician largely credited with discovering the lead crisis that began in 2014 in Flint. 

In the petition, filers asked the EPA to provide increased assistance to the city and state officials handling the water crisis; Pinkney previously specified it was filed as a likely prelude to a class action lawsuit.

“Every Michigander deserves access to safe drinking water, and every community deserves lead-free pipes,” Whitmer spokesperson Bobby Leddy wrote in an email. “Since the first lead exceedance was detected in 2018, the state of Michigan has been on the ground in Benton Harbor working with local partners on a solution to address the aging infrastructure.

“In accordance with the state’s strict Lead and Copper Rule, the state began urging the city to immediately conduct outreach to residents and ordered the city to apply corrosion control to try to bring down the levels and stabilize the drinking water,” Leddy continued. “That is why the governor has issued an executive directive to bring a whole-of-government approach to ensuring that the people of Benton Harbor have safe drinking water.”

Leddy also noted that the state is continuing to provide free bottled water and said the state set “an aggressive timeline to replace all the lead pipes in the next 18 months, which would’ve otherwise taken nearly 15 years to complete under state law.”

Benton Harbor residents gather inside God’s Household of Faith church Saturday. | Anna Gustafson

Excavation work on 100 lead lines began last week as part of the 18-month project to replace all of the city’s lead pipes, the DHHS said. 

The Whitmer administration will “continue to take every step necessary with the urgency and haste this threat demands to ensure parents in Benton Harbor can give their kids a glass of water with confidence,” Leddy said.

When asked for a response to the lawsuit, Muhammad, Benton Harbor’s mayor, said he is “completely focused on replacing every lead service line in the city of Benton Harbor in 18 months.”

“We have started the first phase of lead line replacements with the $5.6 million from the EPA,” Muhammad said of a federal grant that U.S. Rep. Fred Upton (R-St. Joseph) helped to secure last year. “We intend to replace 888 lead service lines using that funding.”

Muhammad, the first mayor to hold office in Benton Harbor following the city being placed under state emergency management from 2010 to 2016, said he has been “pleased with the strong partnership with Governor Whitmer and her administration.

“The residents of Benton Harbor are pleased to see the continued distribution of water and the replacement of lead service lines in the city of Benton Harbor,” Muhammad said. “I will continue to work on behalf of residents to do the job that they elected me to do.”

Previously, the mayor criticized the state elected officials representing Benton Harbor — state Sen. Kim LaSata (R-Bainbridge Twp.) and Rep. Pauline Wendzel (R-Watervliet) — for not addressing the lead issues in Benton Harbor, despite knowing about them for years.

“LaSata and Wendzel have been AWOL on this issue,” Muhammad said in an interview at the end of October.

Neither LaSata nor Wendzel were named in the lawsuit.

The Benton Harbor residents who filed the suit, however, said any efforts to notify the public of the elevated lead levels and the dangers associated with them never made their way to them.

Braziel, a lifelong Benton Harbor resident and one of the suit’s plaintiffs, said she was not aware that she should not drink the tap water until the state’s October announcement.

“At no time prior to late October 2021 was Plaintiff Braziel ever notified by any of the defendants that the water she used was unsafe to drink or utilize in food preparation and oral hygiene. Plaintiff’s minor grandson, born on June 15, 2021, was fed his formula with tap water,” the lawsuit states. 

A Nov. 2 report from the EPA said Benton Harbor officials did not adequately notify the public of the ongoing lead crisis.

“The [city] did not contact public and private hospitals, pediatricians, family planning clinics, community centers, or adult foster care facilities in the 12-month period between August 2020 and August 2021,” the report says.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Anna Gustafson
Anna Gustafson

Anna Gustafson is the assistant editor at Michigan Advance, where her beats include economic justice, health care and immigration. Previously the founder of the Muskegon Times and the editor at Rapid Growth Media in Grand Rapids, Anna has worked as an editor and reporter for news outlets across the country. She began her journalism career reporting on state politics in Wisconsin and has gone on to cover government, racial justice and immigration reform in New York City, education in Connecticut, the environment in Wyoming, and more. Previously, Anna lived in Argentina and Morocco, and, when she’s not working, she’s often trying to perfect the empanada and couscous recipes she fell in love with in these countries. You’ll likely also find her working on her century-old home in downtown Lansing, writing that ever-elusive novel and hiking throughout Michigan.

MORE FROM AUTHOR