The EPA Should Determine
How Its Elevation Policy
Can More Effectively
Address Risks to the Public
September 7, 2023 | Report No. 23-P-0031
Report Contributors
Charles Brunton
Mike Davis
Juliana Ilieva
Tim Roach
Denton Stafford
Detravion White
Abbreviations
C.F.R. Code of Federal Regulations
EPA U.S. Environmental Protection Agency
OIG Office of Inspector General
PPB Parts Per Billion
SDWA Safe Drinking Water Act
Cover Image
Sign at the city limit in Benton Harbor, Michigan. (iStock by Getty Images photo. Credit: Roberto Galan)
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23-P-0031
September 7
, 2023
The EPA Should Determine How Its Elevation Policy Can More
Effectively Address Risks to the Public
Why We Did This Audit
To accomplish this objective:
The U.S. Environmental Protection
Agency Office of Inspector General
initiated this audit to determine the
extent to which the EPA followed its
2016 Policy on Elevation of Critical
Public Health Issues when responding
to evidence of drinking water lead
contamination in the community water
system for Benton Harbor, Michigan.
According to the EPA and the Centers
for Disease Control and Prevention,
there is no amount of lead that is safe
for a child’s bloodstream. Lead is
persistent and bioaccumulates over
time. Beginning in September 2018,
Benton Harbor’s community water
system began exceeding the action
level for lead of 15 parts per billion,
ranging from 0 to 889 parts per billion.
The EPA’s elevation policy encourages
staff to quickly raise their concerns
about human health risks, such as lead
exposure, to the Office of the
Administrator so that the office can
assess the situation and recommend
corrective actions.
To support these EPA mission-
related efforts:
• Ensuring clean and safe water.
• Operating efficiently and
effectively.
To address this top EPA
management challenge:
• Managing business operations and
resources.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG.PublicAffairs@epa.gov.
List of OIG reports.
What We Found
EPA Region 5 drinking water staff overseeing Michigan did not use the Agency’s elevation
policy to alert the administrator when responding to the lead found in Benton Harbor’s
drinking water, which was above the 15 parts per billion action level. The Agency’s
elevation policy encourages EPA staff to elevate public health and environmental risks that
require higher levels of attention than the Agency’s usual processes could address, such as
when normal enforcement and compliance tools are not appropriate or unlikely to succeed
in the near term.
An EPA staff member involved with monitoring Michigan’s response to Benton Harbor told
us that the state was addressing the lead levels in a timely manner. However, elevated lead
levels and other compliance issues at the Benton Harbor community water system met
several of the elevation policy criteria. Still, EPA staff did not elevate these issues to alert
the Office of the Administrator of health risks to Benton Harbor’s residents. In order for the
elevation policy to enhance public health and environmental protection, the Office of the
Administrator should determine how this policy can more effectively achieve its purpose in
situations like Benton Harbor.
Recommendations and Planned Agency Corrective Actions
We recommend that the Office of the Administrator determine how the elevation policy can
more effectively achieve its purpose of elevating public health and environmental risks that
require higher levels of attention than the Agency’s usual processes could address. We
also recommend that the Office of the Administrator, as necessary, develop and implement
a strategy to enhance EPA staff understanding of the circumstances and process for
implementing the elevation policy. The EPA disagreed with the first recommendation, which
remains unresolved. The EPA agreed with the second recommendation, which is resolved
with corrective actions pending. Where appropriate, we revised the report based on the
EPA’s technical comments.
Because the elevation policy was not used, the Office of the
Administrator’s senior-level team did not have an opportunity to assess
and recommend steps for resolving elevated lead levels in the Benton
Harbor water system.
OFFICE OF INSPECTOR GENERAL
U.S. ENVIRONMENTAL PROTECTION AGENCY
September 7, 2023
MEMORANDUM
SUBJECT: The EPA Should Determine How Its Elevation Policy Can More Effectively Address
Risks to the Public
Report No. 23-P-0031
FROM: Sean W. O’Donnell, Inspector General
TO: Janet McCabe, Deputy Administrator
This is our report on the subject audit conducted by the U.S. Environmental Protection Agency Office of
Inspector General. The project number for this audit was OA-FY22-0068. This report contains findings
that describe the problems the OIG has identified and corrective actions the OIG recommends. Final
determinations on matters in this report will be made by EPA managers in accordance with established
audit resolution procedures.
The Office of the Administrator is primarily responsible for the issues discussed in this report.
In accordance with EPA Manual 2750, your office provided acceptable planned corrective actions and
milestone dates for Recommendation 2. This recommendation is resolved. A final response pertaining to
this recommendation is not required; however, if you submit a response, it will be posted on the OIG’s
website, along with our memorandum commenting on your response.
Action Required
Recommendation 1 is not resolved. EPA Manual 2750 requires that recommendations be resolved
promptly. Therefore, we request that the EPA provide us within 60 days its responses concerning specific
actions in process or alternative corrective actions proposed on the recommendations. Your response will
be posted on the OIG’s website, along with our memorandum commenting on your response. Your
response should be provided as an Adobe PDF file that complies with the accessibility requirements of
section 508 of the Rehabilitation Act of 1973, as amended. The final response should not contain data that
you do not want to be released to the public; if your response contains such data, you should identify the
data for redaction or removal along with corresponding justification. The Inspector General Act of 1978,
as amended, requires that we report in our semiannual reports to Congress on each audit or evaluation
report for which we receive no Agency response within 60 calendar days.
We will post this report to our website at www.epaoig.gov.
23-P-0031 i
Table of Contents
Purpose .......................................................................................................................................... 1
Background .................................................................................................................................... 1
The Benton Harbor Water System ............................................................................................ 2
The EPA’s Policy on the Elevation of Critical Public Health Issues ............................................ 3
Responsible Offices ......................................................................................................................... 4
Scope and Methodology.................................................................................................................. 4
Prior Reports .................................................................................................................................. 5
Results ............................................................................................................................................ 6
Conclusions .................................................................................................................................... 8
Recommendations .......................................................................................................................... 9
Agency Response and OIG Assessment ............................................................................................ 9
Status of Recommendations .......................................................................................................... 10
Appendixes
A Office of the Administrator’s Response to Draft Report................................................................ 11
B Region 5’s Response to Draft Report ............................................................................................. 13
C Distribution .................................................................................................................................... 15
23-P-0031 1
Purpose
The U.S. Environmental Protection Agency Office of Inspector General initiated this audit to determine
the extent to which the EPA followed its 2016 Policy on Elevation of Critical Public Health Issues when
responding to evidence of drinking water lead contamination in the community water system for Benton
Harbor, Michigan.
Background
According to the EPA and the Centers for Disease Control and Prevention, there is no amount of lead
that is safe for a child’s bloodstream. Lead is a persistent contaminant and can bioaccumulate in the
human body over time. Children exposed to lead can experience behavior and learning problems, lower
IQs, hyperactivity, slowed growth, hearing problems, and anemia. In 1986, Congress amended the Safe
Drinking Water Act, or SDWA, to prohibit the use of pipes, solder, or flux that are not lead free in public
water systems or in plumbing where facilities provide water for human consumption. A public water
system provides water to at least 15 service connections or serves an average of at least 25 people for at
least 60 days a year. In 1991, the EPA issued the Lead and Copper Rule, under SDWA, as amended,
which establishes a maximum contaminant level goal of zero lead in drinking water and outlines a water
treatment technique to reduce corrosion of lead and copper in distribution systems.
1
To check whether corrosion control treatment techniques are working, the EPA requires community
water systems, or simply water systems, to test tap water for lead in certain homes, including those with
lead service lines. The EPA defines community water systems as public water systems that serve the
same people year-round.
The water systems compare the tap water test results to the EPA’s action level of 15 parts per billion, or
ppb. The lead action level is a measure of the effectiveness of the corrosion control treatment technique
in the water system. If more than 10 percent of customer taps that were tested have lead levels that are
1
“Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper,”
56 Fed. Reg. 26460 (June 7, 1991).
Top Management Challenge Addressed
This audit addresses the following top management challenge for the Agency, as identified in the OIG’s
U.S. Environmental Protection Agency Fiscal Year 2023 Top Management Challenges report, issued October 28,
2022:
• Managing business operations and resources.
Per 40 C.F.R. § 141.2, a maximum contaminant level goal is the “maximum level of a
contaminant in drinking water at which no known or anticipated adverse effect on the health of
persons would occur, and which allows an adequate margin of safety. Maximum contaminant
level goals are nonenforceable health goals.”
23-P-0031 2
greater than the action level, then the system must inform the public about steps it can take to reduce
its exposure to lead, as well as optimze corrosion control and remove lead service lines under the water
system’s control.
The EPA and states, territories, and one tribal nation implement the Lead and Copper Rule, under SDWA
as amended. This Act authorizes the EPA administrator to set standards and enforce regulations. The
EPA has delegated to nearly all states—including Michigan—primary enforcement authority, also
referred to as primacy, which includes the authority to regulate contaminants and implement other
requirements under SDWA. The EPA regional offices oversee these state drinking water programs by
providing guidance, assistance, and public information about drinking water, as well as collecting
drinking water data.
The Benton Harbor Water System
In October 2018, the State of Michigan notified the Benton Harbor water system that it had exceeded
the lead action level of 15 ppb in water samples collected from its residents’ taps, which are listed as
compliance locations in Table 1. Levels ranged from 0 to 889 ppb in the water collected from
September 2018 through June 2022.
Table 1: Lead levels in Benton Harbor drinking water
Monitoring period
Number of
compliance
locations sampled
Number of
locations over
15 ppb
Locations over
15 ppb (%)
Range of results
(ppb)
2016–September 2018*
30
8
27
0–60
January–June 2019
46
12
26
0–59
July–December 2019
39
10
26
0–72
January–June 2020
63
9
14
0–440
July–December 2020
67
11
16
0–240
January–June 2021
79
11
14
0–889
July–December 2021
63
6
10
0–48
January–June 2022
63
5
8
0–53
Source: Michigan Department of Energy, Great Lakes, and the Environment. (EPA OIG table)
*September 2018 was the end of the three-year water sampling and reporting period for the Lead and Copper
Rule. Semiannual sampling began when elevated lead levels were detected.
Benton Harbor is in Berrien County, Michigan, which is located in the southwest corner of the state. The
State of Michigan has identified the city of approximately 9,000 residents as a distressed area due to
greater-than-statewide average poverty and unemployment rates, a lower-than-statewide average in
personal property value, and a declining population. Approximately 85 percent of its residents are Black
or African American, and the 2019 median household income was $21,916.
Benton Harbor, the State of Michigan, and the EPA responded to the lead in drinking water. According to
local media reports, beginning in October 2018, Benton Harbor provided bottled water to residents
whose homes tested above the Lead and Copper Rule action level for lead. By February 2019, the Berrien
County Health Department made available water filters to Benton Harbor residents, and in March 2019,
23-P-0031 3
the Benton Harbor water system began adding corrosion control chemicals to prevent lead from leaching
into the drinking water from the pipes. In October 2020, the EPA announced a $5.6 million grant to the
water system to replace its lead service lines and support a study to optimize lead corrosion control
treatment; the grant was awarded in June 2021. In August 2021, the EPA met with local community
organizations about the lead in drinking water and in September 2021, conducted a joint water system
inspection with the State of Michigan. In November 2021, EPA Region 5 issued a Unilateral Administrative
Order to Benton Harbor that required the water system to inform consumers when lead action level
exceedances are detected in drinking water.
Benton Harbor’s water system experienced other drinking water issues along with elevated lead levels.
From January 2018 through August of 2020, the State of Michigan cited the water system for additional
drinking water violations, including a significant deficiency violation notice from a September 2018
sanitary survey regarding water system managerial oversight, insufficient revenue, treatment,
distribution, monitoring, and reporting issues. The state also issued an Administrative Consent Order to
address these deficiencies. In October 2021, Michigan officials announced that residents should use
bottled water for cooking and drinking.
The EPA’s Policy on the Elevation of Critical Public Health Issues
In 2016, in response to the Flint, Michigan water crisis in which residents were exposed to lead in their
drinking water, the EPA administrator issued the Policy on Elevation of Critical Public Health Issues, an
agencywide policy encouraging staff to elevate issues of significant public health risk. In this report, we
refer to this policy as the elevation policy. The elevation policy urged Agency staff to consider elevating
public health risks that require higher levels of attention than the Agency’s usual processes could
address. The 2016 policy stated that EPA leaders should encourage staff to elevate issues that have the
following characteristics, any of which, according to one Office of Administrator staff member, can be
used to elevate issues of concerns:
• “There appears to be a substantial threat to public health;
• EPA is or can reasonably be expected to be a focus of the need for action; and/or
• Other authorities appear to be unable to address or unsuccessful in effectively addressing such a
threat;
• Recourse to normal enforcement and compliance tools is not appropriate or unlikely to succeed
in the near term;
• High and sustained public attention is possible.”
Through the elevation policy, the administrator asked staff to consider whether focusing too narrowly
on legal, technical, or protocol issues or concerns would miss opportunities to heighten public
awareness of risks. Subsequent administrators have modified the elevation policy but always reaffirmed
the importance of elevating human health and environmental risks. While the administrators offered
23-P-0031 4
their own unique messages regarding elevation and the policy, each retained virtually the same five
characteristics meriting elevation.
In 2018, the Office of the Administrator issued an elevation memorandum reaffirming the importance of
elevating human health and environmental risks. It also deployed an internal web-based reporting tool
that allowed EPA staff to report directly to the Office of the Administrator perceived unaddressed issues
of significant risk to public health or the environment that are within the scope of EPA authorities. These
concerns are shared within the Office of the Administrator and with a senior-level team that includes
representatives from regional and national offices. The team’s role is to promptly assess the reported
concerns and recommend steps to resolve them.
In the four years since the EPA implemented its internal web-based reporting tool in 2018, EPA staff
have raised 11 concerns: four about drinking water, four about air quality, and one each about waste at
a Superfund site, fish consumption rates for Alaskan citizens and natives, and per- and polyfluoroalkyl
substances. The EPA’s internal website contains a summary of each report and how the Office of the
Administrator addressed it.
Responsible Offices
The Office of the Administrator implements the elevation policy and assesses and recommends next
steps to staff concerns submitted via its internal web-based reporting tool. The Office of Groundwater
and Drinking Water, which is within the Office of Water, oversees the implementation of SDWA. EPA
Region 5 oversees the State of Michigan’s implementation of the Act, and the Michigan Department of
Environment, Great Lakes, and Energy has primary enforcement responsibility for drinking water
systems in the state.
Scope and Methodology
We conducted this performance audit from February 2022 to June 2023 in accordance with generally
accepted government auditing standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions
based on our audit objective. We believe that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objective.
We assessed the internal controls necessary to satisfy our audit objective.
2
In particular, we assessed
the internal control components—as outlined in the U.S. Government Accountability Office’s Standards
for Internal Control in the Federal Government—significant to our audit objective. Any internal control
deficiencies we found are discussed in this report. Because our audit was limited to the internal control
2
An entity designs, implements, and operates internal controls to achieve its objectives related to operations,
reporting, and compliance. The U.S. Government Accountability Office sets internal control standards for federal
entities in GAO-14-704G, Standards for Internal Control in the Federal Government, issued September 10, 2014.
23-P-0031 5
components deemed significant to our audit objective, it may not have disclosed all internal control
deficiencies that may have existed at the time of the audit.
We interviewed staff and managers from the Office of the Administrator, Office of Water, Office of
Enforcement and Compliance Assurance, and Region 5. Two key Region 5 staff—the state program
manager for Michigan and the Drinking Water Branch manager—retired before the start of this audit,
and we therefore could not definitively conclude why concerns regarding Benton Harbor were not
elevated. The EPA provided us a timeline of events at Benton Harbor. We reviewed the state and the
EPA’s Administrative Order against the Benton Harbor water system; communications from 2022 about
Benton Harbor that were a part of the administrator’s weekly briefings; the EPA’s requirements under
SDWA, the Lead and Copper Rule, the Agency’s elevation policy; and subsequent administrator
reaffirmations of the elevation policy in 2017, 2018, and 2021. We also reviewed the Office of Water’s
Protocol For Conducting A PWSS Program Data File Review, Region 5 Public Water System Supervision
State Program Managers Desk Guide (Draft) and the EPA’s Drinking Water Enforcement Response Policy.
Prior Reports
The EPA OIG has issued three reports about lead in drinking water:
• EPA OIG Report No. 17-P-0004, Management Alert: Drinking Water Contamination in Flint,
Michigan, Demonstrates a Need to Clarify EPA Authority to Issue Emergency Orders to Protect
the Public, issued on October 20, 2016, recommended that the Office of Enforcement and
Compliance Assurance update the EPA’s 1991 guidance on SDWA section 1431. We also
recommended that all relevant EPA drinking water and water enforcement program
management and staff attend training on SDWA section 1431 authority. The Agency certified in
August 2018 that all corrective actions were completed.
• EPA OIG Report No. 18-P-0221, Management Weaknesses Delayed Response to Flint Water
Crisis, issued July 19, 2018, reported that Flint did not adhere to Lead and Copper Rule
requirements to identify and maintain a pool of Tier 1 sampling sites and to install and maintain
continuous corrosion-control treatment throughout its water-distribution system. Our report
made nine recommendations, including that Region 5 implement a system for regional drinking
water staff, managers, and senior leaders that incentivizes staff elevating and managers
addressing important and emerging issues in accordance with the EPA’s 2016 elevation policy.
Beginning on December 21, 2018, the Agency issued three separate certification memorandums
to the EPA chief financial officer certifying that it had completed corrective actions to address all
nine recommendations.
• EPA OIG Report No. 22-P-0046, The EPA Needs to Fully Address the OIG’s 2018 Flint Water Crisis
Report Recommendations by Improving Controls, Training, and Risk Assessments, issued May 17,
2022, stated that although the EPA certified that it completed corrective actions to address all
nine recommendations issued in our 2018 Flint report, the EPA’s corrective actions for three
recommendations did not fully address the identified deficiencies in oversight. Our 2022 report
23-P-0031 6
recommended that the Office of Enforcement and Compliance Assurance document and
monitor attendance at SDWA training events to ensure that the appropriate staff members,
managers, and senior leaders attend and are aware of the EPA’s oversight and enforcement
tools and authorities. We also recommended that the Office of Enforcement and Compliance
Assurance incorporate controls into the Report a Violation system to assess the risks associated
with tips retained by the EPA and to track when and how the retained tips are resolved.
Results
The Region 5 drinking water staff overseeing Michigan did not use the Agency’s elevation policy to alert
the administrator when responding to the lead found in Benton Harbor’s drinking water, which was
above the 15-ppb action level. The elevation policy encourages EPA staff to elevate critical public health
and environmental risks that require higher levels of attention than the Agency’s usual processes could
address, such as when normal enforcement and compliance tools are not appropriate or are unlikely to
succeed in the near term. An EPA staff member involved with monitoring Michigan’s response told us
that the state was addressing the lead levels in a timely manner. Even still, elevated lead levels and
other compliance issues at the Benton Harbor water system met several of the elevation policy criteria,
and Region 5 drinking water staff did not elevate these issues to alert the Office of the Administrator of
health risks to Benton Harbor’s residents. In order for the elevation policy to enhance public health and
environmental protection, the Office of the Administrator should determine how this policy can more
effectively achieve its purpose in situations like Benton Harbor.
A Region 5 drinking water state program manager emailed Michigan about Benton Harbor’s lead levels
in October 2018 and began monitoring the state’s response. As displayed in Table 2, the EPA, State of
Michigan, Berrian County, and the Benton Harbor water system conducted various activities from
October 2018 through November 2021 in response to elevated lead levels in Benton Harbor’s drinking
water.
Table 2: Selected actions in response to Benton Harbor lead levels in drinking water
Date
Action
October 2018
A Region 5 state program manager contacted Michigan about Benton Harbor’s lead levels,
inquiring why the system exceeded the lead action level.
December 2018
Michigan notified Region 5 that the state had developed a lead corrosion control study.
February 2019
The Berrien County Health Department provided water filters to Benton Harbor residents.
March 2019
The Benton Harbor water system began corrosion control treatment.
December 2019
The EPA requested state updates on local action level exceedance follow-up activities for
recent lead exceedances throughout region, including Benton Harbor
February 2020
Michigan ordered Benton Harbor to increase corrosion control treatment chemical levels.
October 2020
The EPA administrator announced a $5.6 million grant to the Benton Harbor water system to
fund the removal of lead service lines and a study to optimize the city’s lead corrosion control
treatment.
April 2021
The EPA requested state updates on lead action level exceedance follow-up activities for
recent lead exceedances throughout the region. The request included Benton Harbor.
June 2021
The EPA awarded the $5.6 million grant.
23-P-0031 7
Date
Action
August 2021
The EPA’s regional drinking water program and enforcement staff, state staff, the Benton
Harbor Community Water Council, and other groups met about drinking water quality and
efforts to treat water with elevated lead levels.
September 2021
The EPA and Michigan conducted a joint water system inspection upon the state’s request.
November 2021
Region 5 issued a Unilateral Administrative Order to Benton Harbor to take additional actions
to correct violations and significant deficiencies, including public notification of elevated lead
levels.
June 2023
Benton Harbor demonstrated to the EPA that all the terms of the Unilateral Administrative
Order had been satisfactorily completed and the order was terminated. There had been no
lead action level exceedances in the prior three monitoring periods and all of the lead service
lines in Benton Harbor were replaced.
Source: The EPA; Michigan Department of Energy, Great Lakes, and the Environment; and Berrien County.
(EPA OIG table)
While the Region 5 drinking water staff were monitoring the state’s response to lead sample results
above the 15-ppb lead action level, Michigan cited the water system for additional drinking water
violations, including a significant deficiency violation notice regarding water system managerial
oversight, insufficient revenue, treatment, distribution, monitoring, and reporting issues. The state
issued an Administrative Consent Order to address these deficiencies. These enforcement actions,
combined with the elevated lead levels, indicated that there were larger public health risks because the
water system was not operating in a manner that ensured it was providing safe drinking water to
residents, as shown in Table 3.
Table 3: Other public health risks at the Benton Harbor water system
Date
Additional indicators of increased risks to public health
January to
March 2018
Benton Harbor violated two drinking water regulations: monitoring requirements for the Long
Term 2 Enhanced Surface Water Treatment Rule and treatment technique requirements for the
Stage 1 Disinfectants and Disinfection Byproducts Rule.
October 2018
Michigan issued a significant deficiency violation notice to Benton Harbor after a September 2018
sanitary survey. The notice discussed insufficient revenues to cover capital improvement costs;
insufficient managerial oversight; and various significant deficiencies related to drinking water
treatment, distribution, monitoring, and reporting.
October 2018
Region 5 included Benton Harbor on the Enforcement Targeting Tool list because of water system
deficiencies.*
March 2019
Michigan issued an Administrative Consent Order to Benton Harbor to address deficiencies from
the 2018 sanitary survey. This included ordering the city to conduct and submit a drinking water
rate study, install metering capabilities on finished water, obtain a licensed operator in charge, and
submit a proposal for optimal corrosion control treatment or a corrosion control study.
August 2020
Michigan amended the 2019 Administrative Consent Order to require Benton Harbor to assess its
technical, managerial, and financial capacity to provide safe water to the public.
October 2021
Michigan officials announced that residents should use bottled water for cooking and drinking.
Source: The EPA and the State of Michigan. (EPA OIG table)
* The Enforcement Targeting Tool identifies public water systems having the highest total noncompliance across
all rules, within a designated period of time.
23-P-0031 8
Beginning in 2018, Benton Harbor’s water system experienced elevated lead levels and other violations
and operational deficiencies, which resulted in an October 2021 announcement from Michigan officials
that residents should use bottled water for cooking and drinking. During that time, Region 5 staff did not
elevate Benton Harbor’s drinking water issues to the Office of the Administrator. The lead levels and
other compliance issues at Benton Harbor met four out of five elevation policy criteria listed below,
although an Office of the Administrator staff member explained that any of the criteria could qualify to
elevate a concern:
• There appears to be a substantial threat to public health, because, according to the Centers for
Disease Control and Prevention, there is no amount of lead that is safe for a child, and lead is a
persistent contaminant that can bioaccumulate in the human body over time.
• The EPA could reasonably be expected to be a focus for the need for action since the Agency
awarded a grant to remove lead service lines and issued an Administrative Order addressing
water system deficiencies.
• Normal enforcement and compliance tools, such as the 2018 sanitary survey and subsequent
violation notices, seem to be unlikely to succeed in the near term, as evidenced by Michigan’s
announcement in 2021 that residents should use bottled water for cooking and drinking.
• There was a possibility for high and sustained public attention because of previous issues of lead
in drinking water, such as the Flint water crisis.
The Office of the Administrator developed the elevation policy so staff could raise critical public health
and environmental issues that the Agency could properly assess and respond to in an appropriate
manner. Furthermore, the elevation policy was issued in response to the Flint water crisis so that EPA
staff could quickly alert the Office of the Administrator to human health and environmental risks facing
communities. It is uncertain whether the response at Benton Harbor would have been different with the
Office of the Administrator’s senior-level team involvement via the policy. Nevertheless, EPA staff did
not use the policy as the Office of the Administrator appears to have intended to alert the office to the
human health risks facing Benton Harbor residents.
Conclusions
While Region 5 staff members monitored the state and local response to lead action level exceedances
at Benton Harbor and issued a Unilateral Administrative Order, they did not use the elevation policy to
alert the Office of the Administrator about these lead levels and other compliance issues facing the
water system. The situation at Benton Harbor met four of the five elevation policy criteria, which calls
into question the circumstances under which staff would elevate any concern via the policy. As a result,
the EPA should determine how this policy can more effectively achieve its purpose.
23-P-0031 9
Recommendations
We recommend that the deputy administrator:
1. Determine how the Policy on Elevation of Critical Public Health Issues can more effectively
achieve its purpose of elevating public health and environmental risks that require higher levels
of attention than the Agency’s usual processes could address.
2. As necessary, develop and implement a strategy to enhance EPA staff understanding of the
circumstances and process for implementing the Policy on Elevation of Critical Public Health
Issues.
Agency Response and OIG Assessment
The Office of the Administrator’s May 30, 2023 response to our draft report is in Appendix A. The Office
of the Administrator did not concur with Recommendation 1 but concurred with Recommendation 2
and provided corrective actions with planned completion dates. In response to Recommendation 1, the
office stated that the reaffirmed policy from the administrator, distributed December 28, 2022, is
effective and working as intended. The office also indicated that it modified the reaffirmed policy to
include feedback the OIG provided during the audit, which corrected an error on the EPA’s public
website regarding one of the five elevation policy criteria. While the Office of the Administrator stated
that the policy is effective and working as intended, Recommendation 1 stated for the Agency to
determine how this policy can more effectively achieve its purpose of elevating human health and
environmental risks that require higher levels of attention than the Agency’s usual processes could
address. The Agency’s reaffirmation and statement, and correction of an error on the EPA’s public
website, do not meet the intent of our recommendation because an analysis is necessary to determine
the policy’s effectiveness. Therefore, Recommendation 1 is unresolved.
On Recommendation 2, the Office of the Administrator proposed to look at ways to expand outreach of
this policy to the workforce through various means—including introducing it to new employees, adding
the policy to the agenda of an all-staff meeting, and incorporating the policy into a weekly newsletter.
When completed, these corrective actions should address the intent of Recommendation 2. Therefore,
we consider this recommendation resolved with corrective actions pending.
Region 5’s May 26, 2023 response to our draft report is in Appendix B. While the Region 5 regional
administrator is not the action official for this report, the region did provide comments and technical
corrections. The region stated that the draft report failed to acknowledge that drinking water concerns
in Benton Harbor had been elevated to the Office of the Administrator via normal elevation channels.
However, in the 2018 reaffirmation of the elevation policy, the administrator stated that it is important
to raise concerns quickly and think creatively when a broader perspective would suggest that a larger
public health or environmental issue is at stake. The EPA’s regional staff could have used the elevation
policy to alert the Office of the Administrator, as the policy is intended when there are risks to public
health. We made technical corrections, where appropriate, based on the region’s response to the draft
report.
23-P-0031 10
Status of Recommendations
Rec.
No.
Page
No.
Recommendation
Status*
Action Official
Planned
Completion
Date
1 9
Determine how the Policy on Elevation of Critical Public Health
Issues can more effectively achieve
its purpose of elevating
public health and environmental risks that require
higher levels of
attention than the Agency’s usual processes could address.
U Deputy Administrator
2 9
As necessary, develop and implement a strategy to enhance
EPA staff understanding of the circumstances and process for
implementing the Policy on Elevation of Critical Public Health
Issues.
R Deputy Administrator 6/30/24
* C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
23-P-0031 11
Appendix A
Office of the Administrator’s Response to Draft Report
The Office of the Administrator appreciates the opportunity to respond to the OIG’s draft report
titled, The EPA Should Determine How Its Elevation Policy Can More Effectively Address Risks
to the Public (Project No. OA-FY22-0068).
I General Comments:
It is important to note that the elevation policy did not derive from a statutory or regulatory
mandate, Congressional inquiry or report, or an Executive Order or OMB directive. Simply
stated, it is a voluntary tool the agency has developed, and employs, to engage the EPA work
force on alleged or perceived concerns an employee may feel is a threat to public health or the
environment. This web-based tool allows an EPA employee to provide agency senior
management with notice of a perceived unaddressed significant risk to public health or
environment that is within the scope of the EPA’s authorities. On a separate but related note,
this is not the only means in which an employee can elevate a concern, risk, or vulnerability to
agency senior leadership.
When a notice is received via the web-based tool, a small group of senior career executives
quickly convene to review it and map out a strategy of how best to address and respond to the
alleged or perceived concern. Depending on the nature of the alleged or perceived concern,
subject matter experts from across the agency are called upon to assist in developing a response.
Upon completion of a coordinated response, it is communicated back to the employee and
subsequently uploaded on to the agency’s intranet site, essentially closing out the feedback loop.
23-P-0031 12
II Responses to the Recommendations:
Recommendation 1: We recommend that the Office of the Administrator determine how the
elevation policy can more effectively achieve its purpose of elevation public health and
environmental risks that require higher levels of attention than the Agency’s usual processes
could address.
The Office of the Administrator respectfully disagrees with this recommendation. We believe,
the recently reaffirmed policy from the Administrator, distributed December 28, 2022, is
effective and working as intended. It should also be noted that this reaffirmed policy was
tweaked to include feedback received from your team during this audit.
Recommendation 2: We also recommend that the Office of the Administrator, as necessary,
develop and implement a strategy to enhance EPA staff understanding of the circumstances and
process for implementing the elevation policy.
• Proposed Corrective Action 2: The Office of the Administrator will look at ways to
expand outreach of this policy to the workforce through various means—including but not
limited to new employee on-boarding, adding the policy to the agenda of an all-staff meeting,
and incorporating the policy into a weekly newsletter.
• Target Completion Date: June 30, 2024
We look forward to these comments being incorporated into the final report. If you have any
questions regarding this memorandum, please contact Michael Benton, Office of the
Administrator, AFC at 202-564-2860 or benton.mi[email protected].
cc: Radhika Fox, AA Office of Water
Debra Shore, Regional Administrator Region 5
Tim Roach, Supervisor Auditor, OIG
Denton Stafford, Analyst in charge, OIG
Dale Meyer, Comptroller, Region 5
Cameo Smoot, OW AFC
Nancy Grantham, PDAA, OPA
Robert Kaplan, Regional Counsel, Region 5
Tera Fong, OW Region 5
Nina Johnson, AFC Region 5
Lance McCluney, Director OAES
Susan Perkins, OCFO
23-P-0031 13
Appendix B
Region 5’s Response to Draft Report
May 26, 2023
Mr. Tim Roach
Supervisory Analyst
EPA Office of Inspector General, Office of Audit
The Metcalfe Federal Building
77 W. Jackson Blvd. R1318
Chicago, IL 60604
Dear Mr. Roach:
The Environmental Protection Agency Region 5 (“Region 5” or “R5”) appreciates the
opportunity to comment on the Office of Inspector General’s (“OIG’s”) draft report, “The EPA
Should Determine How Its Elevation Policy Can More Effectively Address Risks to the Public,”
Project No. OA-FY22-0068, April 27, 2023. The draft report discusses at length Region 5’s
response to drinking water concerns in Benton Harbor, Michigan, and in October 2022, Region 5
commented on OIG’s statement of findings for this project, entitled “Public Health Risks at
Benton Harbor’s Water System Could Have Been Reduced by Using Agency Elevation Policy.”
Today, we are providing the attached list of comments on the draft report, many of which are
repeat comments and factual corrections from the statement of findings, as well as the following
overarching comments and recommendation.
We agree that safe and reliable drinking water is of paramount importance in Benton Harbor,
across Michigan, and around the country, and that the EPA elevation policy is an important tool
to address situations when public health risks are not receiving the appropriate level of awareness
and action. However, by focusing on Region 5’s non-use of the elevation policy in Benton
Harbor, the draft report is critically flawed in two significant ways.
First, a central premise of the report is factually incorrect. The draft report fails to acknowledge
that drinking water concerns in Benton Harbor were in fact elevated to the Office of the
Administrator (“OA” or “AO”) via normal elevation channels and that the AO’s senior-level
team had ample opportunity to assess and recommend steps for resolving the issues in Benton
23-P-0031 14
Harbor. Indeed, as early as October 2020, former Administrator Wheeler visited Benton Harbor
to announce a $5.6 million grant to fund lead service line replacement as well as a study to
support the state primacy agency’s ongoing efforts to optimize the city’s lead corrosion control
treatment. The same is true for the current leadership, as senior leadership in the Office of Water
and the AO had even more extensive knowledge and involvement in Benton Harbor. Region 5
staff did not need a separate elevation channel in this instance.
Second, by concluding that Region 5 staff should have used the elevation policy because
elevated lead levels and other compliance issues in Benton Harbor met several of the elevation
policy criteria, the draft report damages the elevation policy and actually may keep it from
serving its intended purpose. If Agency staff were to invoke the elevation policy to elevate any
issue that meets some of the elevation policy criteria, the separate elevation channel would be
completely overwhelmed. Some examples prove the point. For the standard at issue in Benton
Harbor, there were 206 new or unresolved Action Level Exceedances in 2022 across Region 5.
There were 343 measured ozone and 65 measured lead exceedances of ambient air quality
standards in 2022. In a typical year, there are 40 time-critical removal actions of hazardous
substances in Region 5. These exceedances and emergency response satisfy the criteria for
elevation. These number do not reflect that national total, which would be multiplied by a factor
of 10 to give a true picture of expected volumes. In short, if everything is a priority, then nothing
is. This would defeat the purpose of the elevation policy – to provide Agency staff an
extraordinary alternative elevation channel to report perceived unaddressed issues of significant
risk to public health or the environment.
We share the OIG’s interest in factual accuracy, and ultimately, preservation of the elevation of
the elevation policy as a valuable alternative tool. We recommend that OIG revise its draft
report in light of the above and attached comments.
If you have further questions, please contact Dale E. Meyer at (312) 886-7561, or
Sincerely,
23-P-0031 15
Appendix C
Distribution
The Administrator
Deputy Administrator
Chief of Staff, Office of the Administrator
Deputy Chief of Staff for Management, Office of the Administrator
Assistant Administrator for Water
Regional Administrator, Region 5
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Affairs
Associate Administrator for Public Affairs
Deputy Assistant Administrators for Water
Deputy Regional Administrator, Region 5
Director, Office of Continuous Improvement, Office of the Chief Financial Officer
Director, Office of Regional Operations
Director, Office of Program Analysis, Regulatory, and Management Support, Office of Water
Associate Director, Office of Program Analysis, Regulatory, and Management Support, Office of Water
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Region 5
Whistleblower Protection
U.S. Environmental Protection Agency
The whistleblower protection coordinator’s role
is to educate Agency employees about
prohibitions on retaliation and employees’ rights
and remedies in cases of reprisal. For more
information, please visit the whistleblower
protection coordinator’s webpage.
www.epa.gov/oig
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