Department of Environmental Protection closes FOIL Request with partial response about Lead and Copper Rule tests

  • The New York City Department of Environmental Protection closed out a FOIL Request.

  • A limited FOIL Response was comprised of redacted information about the water testing under the Lead and Copper Rule.

  • No documents were released about lead water service line replacements in Spanish Harlem.


Deborah Fremder, a records access officer with the New York City Department of Environmental Protection, summarily closed out a request made by Progress Queens under the State's Freedom of Information Law, seeking records about : (i) the partial or full replacement of water service lines in Spanish Harlem, and (ii) the results of tests conducted on tap water for the three years between 2014 and 2016 in connection with the Lead and Copper Rule, a Federal standard of water testing that governs public water systems.

Ms. Fremder only released information about the water tests for 2014 and 2015, and those records, which have been made publicly-available by Progress Queens, have been redacted for their address information. The records that were released did not indicate the Tier status of each site. Because the Tier status of the testing sites were not disclosed, as requested, the Department of Environmental Protection has refused to disclose whether the testing sites were selected in accordance with nuanced regulations that call for sites to be tested that have copper pipes with lead solder joints, interior lead plumbing, or have a lead service line. The Tier status regulations are governed by the New York State standard of water testing for public water systems.

In closing out the FOIL Request, Ms. Fremder denied Progress Queens any records about the partial or full replacement of water lines from 2014 through 2016 for a specified geographic section of Manhattan that roughly corresponds with Spanish Harlem.

The FOIL Request was made nearly one year ago, on 21 September 2016. The FOIL Request was made before Progress Queens published a report raising questions about an upward trend in the level of lead in Municipal water tests.  In the time since, Progress Queens was forced to amend the original FOIL Request in order to accommodate limitations that were demanded by the Department of Environmental Protection. Even though Progress Queens amended the FOIL Request in response to demands by the Department of Environmental Protection, the Municipal agency refused to release all of the requested records.

In the last year, reports published by The New York Times, WNYC 93.9 FM, and Progress Queens have raised questions about water tests for lead in public schools and in public housing.

Two studies, one involving the U.S. Environmental Protection Agency and another published by the American Chemical Society, have raised questions about whether water service lines containing lead that have been disturbed, for example through partial or full replacement, were responsible for releasing lead into water systems. The FOIL Request made by Progress Queens was filed after an apartment in a building owned by the New York City Housing Authority tested very high for lead in drinking water without any explanation. Federal regulations call for action to be taken when water tests for lead exceed 15 parts per billion (ppb) at a certain per centile. of testing ; the public housing apartment unit tested positive for lead at 1,249 ppb. The public housing apartment building, Metro North Plaza Houses, is located in an area near the massive construction project that created the Second Avenue Subway.

In 2015, The Associated Press published a report, revealing that the de Blasio administration was managing all politically-sensitive FOIL Requests right out of City Hall. In 2016, The New York Daily News revealed in a report that Corporation Counsel Zachary Carter had withheld and redacted documents in connection with the luxury condominium conversion of Rivington House, a former AIDS hospice facility. Documents about the Rivington House transaction were the subject of investigation by many law enforcement agencies and the target of many FOIL Requests filed by the media, including by Progress Queens.

The U.S. Attorney's Office in Manhattan had reportedly been investigating many aspects of the administration of Mayor Bill de Blasio (D-New York City), including the physical condition standards at the Municipal public housing agency and relationships between the mayor and individuals responsible for making or bundling campaign finance donations to several of Mayor de Blasio's political committees. For this report, several sources at the U.S. Attorney's Office refused to answer requests for information about the withholding by the de Blasio administration of records about service line replacements and water tests. In the past, the Department of Environmental Protection has been the target of a multiple-year investigation by environmental lawyers at the U.S. Attorney's Office.

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