NYCHA FOIL response identifies developments that tested positive for lead in water

NYCHA produces 732 MB of electronic documents in response to Progress Queens' FOIL request

The Metro North Plaza Houses in Harlem, seen here in June 2010. In March 2016, an apartment within this building tested positive for lead in drinking water with a measurement of 1,249 parts per billion. Source : Jim Henderson/Wikimedia Commons/Universal (CC0 1.0)

The Metro North Plaza Houses in Harlem, seen here in June 2010. In March 2016, an apartment within this building tested positive for lead in drinking water with a measurement of 1,249 parts per billion. Source : Jim Henderson/Wikimedia Commons/Universal (CC0 1.0)

By LOUIS FLORES

Updated 26 September 2016 ⎪ On Friday, Progress Queens received the ten (10) DVD/CD discs that the New York City Housing Authority, or NYCHA, released in response to a Freedom of Information Law request.

The records have been uploaded for public access. A more detailed review of the documents will follow in due course.

The FOIL request had sought all non-exempt records produced by NYCHA to the U.S. Attorney's Office for New York's southern district in respect of a reported wide-ranging investigation into possible false financial claims and lead poisoning. Reportedly, NYCHA has produced over 400 million pages of documents to the U.S. Attorney's Office. Notwithstanding the volume of documents produced to Progress Queens was substantially lower in number.

Tests for lead in water

The first DVD disc contains data about the locations of NYCHA developments, where water tests showed the positive presence of lead, information that Progress Queens had been seeking from officials at each of NYCHA and the U.S. Attorney’s Office. It is important to note that the data about water tests appeared on two summary spreadsheets ; actual test reports were not produced.

One spreadsheet indicated what appeared to be the first set of tests conducted in March 2016 showing measurements of lead as high as 1,249 parts per billion at one apartment within NYCHA’s housing developments.

According to guidelines published by the Centers for Disease Control and Prevention, action should be taken to avoid lead-contaminated water when measurements exceed 15 ppb. The U.S. Environmental Protection Agency also uses 15 ppb as an important threshold.*

In total, thirteen (13) apartments located in these housing developments exceeded the 15 parts per billion threshold :

  • Metro Plaza North, Spanish Harlem, Manhattan : 1,249 ppb
  • Ocean Hill-Brownsville, Crown Heights, Brooklyn : 947 ppb
  • Berry Houses, Staten Island : 675 ppb
  • Forest Hills Co-Op, Forest Hills, Queens : 541 ppb
  • Vladeck II Houses, Lower East Side, Manhattan : 99 ppb
  • White Houses, Spanish Harlem, Manhattan: 89 ppb
  • Ravenswood Houses, Astoria, Queens : 88 ppb
  • Vladeck Houses, Lower East Side, Manhattan : 53 ppb
  • Haber Houses, Coney Island, Brooklyn : 39 ppb
  • Drew-Hamilton Houses, Harlem, Manhattan : 37 ppb
  • Woodside Houses, Woodside, Queens : 32 ppb
  • Queensbridge South Houses, Long Island City, Queens : 17 ppb
  • Vladeck Houses, Lower East Side, Manhattan : 17 ppb

Other apartments tested positive for lead in water at measurements below 15 parts per billion, but above 5 parts per billion, a range that is still considered worrisome, according to a report published by The Washington Post about the water crisis in Flint, Michigan.

A second spreadsheet of water tests indicated much lower lead test results.

As reported by Progress Queens, NYCHA CEO Shola Olatoye testified before a hearing of the New York City Council about water tests for lead, noting that conclusions reached about the exposure to lead and the risk of exposure to lead for all of NYCHA’s 400,000 tenants rest on a proxy test of 202 children living in NYCHA housing developments and drinking water tested in approximately 175 apartment units.

Regarding the incidence of lead in water, NYCHA CEO Olatoye said at a City Council hearing in March that the municipal housing authority had conducted a random sample study of approximately 175 units. Of those units, tap water was tested “on the first draw,” which meant taking water samples as soon as a faucet was turned on. The first-draw test identified samples from 13 units that tested positive for elevated lead levels. The study also tested separate tap water samples that were collected “on second draw,” which meant taking water samples after the tap water had been allowed to “run a bit.” Of these second-draw samples, test results indicated that just one sample tested positive for elevated lead levels.

NYCHA CEO Olatoye also testified that NYCHA was working with other government agencies to retest tap water according to other environmental protocols.

“It’s very important that our residents have confidence that there are not issues within the housing authority,” NYCHA CEO Olatoye said, in relevant part, during her City Council testimony.

Although NYCHA CEO Olatoye only discussed water tests reportedly conducted in 2016, one document included by NYCHA in the FOIL response indicated that several buildings have been tested for lead from 2010 to 2015. However, details about the tests and the test results were not released.

Notwithstanding NYCHA's assurances about drinking water safety, Progress Queens has raised questions about the cramped reading of limited water test results.

Costs and memory size of the electronic documents

For the discs and for shipping, NYCHA charged Progress Queens a total of $21,90, the cost of which was sponsored by a supporter of Progress Queens. This cost was the sum of $2,00 for each disc and a proposed charge of $1,95 for each of two expected shipments, even though NYCHA eventually shipped all ten (10) disks in a single envelope.

The relatively minor cost still represented an over-charge, given that it was unnecessary to use ten (10) discs to store the amount of records produced in response to the FOIL request.

The ten (10) discs were comprised of four DVD discs, each with a capacity of 4.7 GB, and six CD discs, each with a capacity of 700 MB. The combined memory of the files contained on the ten (10) discs amounted to 732 MB, representing less than the capacity of just one DVD disc. Had NYCHA loaded all the electronic documents onto just one DVD, it could have charged Progress Queens $3,95 instead of $21,90.

Even considering the over-charge, NYCHA’s final charges to Progress Queens represented some cost-savings, because NYCHA was at first threatening to charge Progress Queens 25 cents per page in statutory FOIL reproduction charges, a fee that was decreased after intervention from Robert Freeman, the head of New York State’s Committee on Open Government. The Committee on Open Government provides guidance to make sure that Government agencies comply with the State’s FOIL provisions.

Background on FOIL request

Before it was clear that NYCHA was going to produce documents in response to the FOIL request, Progress Queens had attempted to seek judicial intervention from U.S. District Court Judge Deborah Batts to compel NYCHA's compliance with FOIL. The reason Progress Queens had approached the Hon. U.S. District Court Judge Batts for assistance is because Her Honor had signed a court order compelling NYCHA to produce municipal health-related records to the U.S. Attorney's Office. In response to Progress Queens' request for judicial intervention, the Hon. U.S. District Court Judge Batts refused to intervene. Through Her Honor's law clerk, the Hon. U.S. District Court Judge Batts responded to Progress Queens' request by writing, in part, "Contrary to your assumption that I have jurisdiction over this matter, I do not."

Prior to appealing for assistance from the Hon. U.S. District Court Judge Batts, Progress Queens had requested that the U.S. Attorney's Office consider making a discretionary release of only those records in its possession that would have identified the NYCHA developments that tested positive for lead. However, James Margolin, a spokesperson for the U.S. Attorney's Office, responded in an e-mail to Progress Queens by writing, in relevant part, "The documents to which you refer are not public documents."

Progress Queens had pursued obtaining records from NYCHA based on the urgency expressed by prosecutors, who are reportedly investigating NYCHA for possible false financial claims and for lead poisoning and lead poisoning risks.

Assistant U.S. Attorneys Robert Yalen, Monica Folch, and Talia Kraemer are reportedly leading the Federal investigation into NYCHA. In a joint filing made before the Hon. U.S. District Judge Batts on 16 March, the three Assistant U.S. Attorneys wrote that, in seeking a Court order for NYCHA to produce municipal health records, there was a compelling public need for the privacy-encumbered documents to be provided to the U.S. Attorney's Office. The three Federal prosecutors wrote in their Court filing, in relevant part, that, "Production of the information is in the interest of justice."

(*) This report was updated to include information about a threshold used by the U.S. Environmental Protection Agency.

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