CLOSED,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18−cv−05213−WHP

United States of America v. New York City Housing Authority Assigned to: Judge William H. Pauley, III Related Case: 1:17−cv−07481−WHP Cause: 42:1437 U.S. Housing Act of 1937
Plaintiff

Date Filed: 06/11/2018 Date Terminated: 03/15/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Jacob Thomas Lillywhite U.S. Attorney's Office, SDNY, Civil Division 86 Chambers Street New York, NY 10007 212−637−2639 Fax: 212−637−2750 Email: jacob.lillywhite@usdoj.gov ATTORNEY TO BE NOTICED

Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2730 Email: Jeffrey.Oestericher@usdoj.gov ATTORNEY TO BE NOTICED

Monica Pilar Folch United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212)−637−6559 Fax: (212)−637−2730 Email: monica.folch@usdoj.gov ATTORNEY TO BE NOTICED

Sharanya Mohan United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212)−637−2737 Fax: (212)−637−2786 Email: sharanya.mohan@usdoj.gov ATTORNEY TO BE NOTICED

Talia Kraemer U.S. Attorney's Office, SDNY 86 Chambers Street, 3rd Floor New York, NY 10007 (212)−637−2822 Fax: (212)−637−2702 Email: talia.kraemer@usdoj.gov ATTORNEY TO BE NOTICED

Geoffrey Steven Berman

V. Defendant New York City Housing Authority
Interested Party City−Wide Council of Presidents, Inc.

United States Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 (212)−637−2575 Email: geoffrey.berman@usdoj.gov ATTORNEY TO BE NOTICED
Robert William Yalen U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2722 Fax: (212)−637−2687 Email: robert.yalen@usdoj.gov ATTORNEY TO BE NOTICED
represented by Alan Schoenfeld Wilmer Cutler Pickering Hale & Dorr LLP (NYC) 7 World Trade Center New York, NY 10007 (212) 937−7294 Fax: (212) 230−8888 Email: alan.schoenfeld@wilmerhale.com ATTORNEY TO BE NOTICED
Debo Patrick Adegbile Wilmer Cutler Pickering Hale & Dorr LLP (NYC) 7 World Trade Center New York, NY 10007 (212)−295−6717 Fax: (212)−230−8888 Email: debo.adegbile@wilmerhale.com ATTORNEY TO BE NOTICED
Saurabh Sanghvi Wilmer Cutler Pickering Hale & Dorr L.L.P. (DC) 1801 Pennsylvania Avenue, NW Washington, DC 20006 202−663−6000 Email: saurabh.sanghvi@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Reisbaum Clarick Gueron Reisbaum LLP 220 Fifth Avenue New York, NY 10001 (212) 633−4310 Fax: (646) 478−9484 Email: ereisbaum@cgr−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole L. Gueron Clarick Gueron Reisbaum LLP

Interested Party At−Risk Community Services, Inc.
Interested Party City of New York

220 Fifth Avenue New York, NY 10001 (212) 633−4310 Fax: (646) 478−9484 Email: ngueron@cgr−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Costiere Holsinger Clarick Gueron Reisbaum LLP 220 Fifth Avenue New York, NY 10001 (646)−398−5065 Fax: (646)−478−9484 Email: mholsinger@cgr−law.com ATTORNEY TO BE NOTICED
represented by Emily Reisbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole L. Gueron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Costiere Holsinger (See above for address) ATTORNEY TO BE NOTICED
represented by Georgia Mary Pestana NYC Law Department 350 Jay Street Brooklyn, NY 11201 212−788−0862 Fax: 212−788−0940 Email: gpestana@law.nyc.gov ATTORNEY TO BE NOTICED
Mark W. Muschenheim NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 212 356−2186 Fax: 212 356−1148 Email: mmuschen@law.nyc.gov ATTORNEY TO BE NOTICED

Date Filed 06/11/2018
06/11/2018 06/11/2018

# Docket Text
1 FILING ERROR − DEFICIENT PLEADING − SIGNATURE ERROR − COMPLAINT against New York City Housing Authority. Document filed by United States of America.(Yalen, Robert) Modified on 6/12/2018 (pne). (Entered: 06/11/2018)
2 CIVIL COVER SHEET filed. (Yalen, Robert) (Entered: 06/11/2018)
3 STATEMENT OF RELATEDNESS re: that this action be filed as related to 13 Civ. 8916 (WHP). Document filed by United States of America.(Yalen, Robert) (Entered:

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06/11/2018)
4 STATEMENT OF RELATEDNESS re: that this action be filed as related to 17 Civ. 7481 (WHP). Document filed by United States of America.(Yalen, Robert) (Entered: 06/11/2018)
5 SETTLEMENT AGREEMENT . Document filed by United States of America. (Attachments: # 1 Attachment A − Proposed Consent Decree)(Yalen, Robert) (Entered: 06/11/2018)
6 NOTICE OF APPEARANCE by Monica Pilar Folch on behalf of United States of America. (Folch, Monica) (Entered: 06/11/2018)
7 NOTICE OF APPEARANCE by Jacob Thomas Lillywhite on behalf of United States of America. (Lillywhite, Jacob) (Entered: 06/11/2018)
8 NOTICE OF APPEARANCE by Talia Kraemer on behalf of United States of America. (Kraemer, Talia) (Entered: 06/11/2018)
9 NOTICE OF APPEARANCE by Monica Pilar Folch on behalf of United States of America. (Folch, Monica) (Entered: 06/11/2018)
10 NOTICE OF APPEARANCE by Sharanya Mohan on behalf of United States of America. (Mohan, Sharanya) (Entered: 06/11/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Unassigned. (pne) (Entered: 06/12/2018)
Case Designated ECF. (pne) (Entered: 06/12/2018)
CASE REFERRED TO Judge William H. Pauley as possibly related to 13CV8916 and 17CV7481. (pne) (Entered: 06/12/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Robert William Yalen to RE−FILE Document No. 1 Complaint. The filing is deficient for the following reason: the pleading was not signed by the filing attorney. Re−file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents − attach the correct signed PDF − select the individually named filer/filers − select the individually named party/parties the pleading is against. (pne) (Entered: 06/12/2018)
CASE ACCEPTED AS RELATED. Create association to 1:17−cv−07481−WHP. Notice of Assignment to follow. (wb) (Entered: 06/12/2018)
NOTICE OF CASE REASSIGNMENT to Judge William H. Pauley, III. Judge Unassigned is no longer assigned to the case. (wb) (Entered: 06/12/2018)
Magistrate Judge Katharine H. Parker is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (wb) (Entered: 06/12/2018)
11 COMPLAINT against New York City Housing Authority. Document filed by United States of America.(Berman, Geoffrey) (Entered: 06/12/2018)
22 LETTER addressed to Judge William H. Pauley, III from Daniel Barber dated 6/12/2018 re: opposition of the Consent Decree in this matter. Document filed by City−Wide Council of Presidents, Inc. (jwh) (Entered: 06/27/2018)
12 NOTICE OF APPEARANCE by Alan Schoenfeld on behalf of New York City Housing Authority. (Schoenfeld, Alan) (Entered: 06/13/2018)
13 NOTICE OF APPEARANCE by Debo Patrick Adegbile on behalf of New York City Housing Authority. (Adegbile, Debo) (Entered: 06/13/2018)
14 REQUEST TO PARTICIPATE of City−Wide Council of Presidents, Inc. Pre−Motion Letter. Document filed by City−Wide Council of Presidents, Inc..(Gueron, Nicole) (Entered: 06/19/2018)

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07/08/2018 07/09/2018 07/09/2018 07/09/2018 07/13/2018

15 NOTICE OF APPEARANCE by Nicole L. Gueron on behalf of City−Wide Council of Presidents, Inc., At−Risk Community Services, Inc.. (Gueron, Nicole) (Entered: 06/19/2018)
16 NOTICE OF APPEARANCE by Melissa Costiere Holsinger on behalf of At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Holsinger, Melissa) (Entered: 06/19/2018)
17 NOTICE OF APPEARANCE by Emily Reisbaum on behalf of At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Reisbaum, Emily) (Entered: 06/19/2018)
18 LETTER addressed to Judge William H. Pauley, III from Robert William Yalen dated June 26, 2018 re: Pre−Motion Letter re Intervention. Document filed by United States of America.(Yalen, Robert) (Entered: 06/26/2018)
19 NOTICE OF APPEARANCE by Georgia Mary Pestana on behalf of City of New York. (Pestana, Georgia) (Entered: 06/26/2018)
20 LETTER addressed to Judge William H. Pauley, III from Debo P. Adegbile dated June 26, 2018 re: Response to June 19, 2018 Letter. Document filed by New York City Housing Authority.(Adegbile, Debo) (Entered: 06/26/2018)
21 LETTER addressed to Judge William H. Pauley, III from Georgia M. Pestana dated 06/26/2018 re: Response to letter Dkt #14. Document filed by City of New York.(Pestana, Georgia) (Entered: 06/26/2018)
23 SCHEDULING ORDER: Counsel for the parties are directed to appear in Courtroom 20B at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York on July 10, 2018 at 10:00 a.m. for a status conference to discuss procedures for a fairness hearing in connection with the proposed consent decree in this action and to discuss the ramifications of the proposed consent decree filed in Baez et al. v. New York City Housing Authority, 13cv8916 (S.D.N.Y.). (See ECF Nos. 166 & 172, 13cv8916.) The parties are invited to submit letter memoranda addressing these issues by 12:00 p.m. on July 9, 2018. Counsel for the proposed intervenors, City−Wide Council of Presidents, Inc. and the At−Risk Community Services, Inc., are also directed to appear at the conference to discuss their proposed motion to intervene. (Status Conference set for 7/10/2018 at 10:00 AM in Courtroom 20B, 500 Pearl Street, New York, NY 10007 before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 6/28/2018) (jwh) (Entered: 06/28/2018)
24 NOTICE OF APPEARANCE by Jeffrey Stuart Oestericher on behalf of United States of America. (Oestericher, Jeffrey) (Entered: 07/08/2018)
25 LETTER addressed to Judge William H. Pauley, III from Georgia M Pestana dated July 9, 2018 re: proposed consent decree. Document filed by City of New York.(Pestana, Georgia) (Entered: 07/09/2018)
26 LETTER from Debo P. Adegbile dated July 9, 2018 re: Proposed Consent Decree. Document filed by New York City Housing Authority.(Adegbile, Debo) (Entered: 07/09/2018)
27 LETTER addressed to Judge William H. Pauley, III from Robert William Yalen dated July 9, 2018 re: Scheduling Order. Document filed by United States of America.(Yalen, Robert) (Entered: 07/09/2018)
28 SCHEDULING ORDER: The parties in the above−captioned cases (the "Parties"), interested party The City of New York (the "City"), and proposed intervenors City−Wide Council of Presidents, Inc. and At−Risk Community Services, Inc. (the "Proposed Intervenors") having appeared for a status conference and pre−motion conference in the above−captioned matters on July 10, 2018, this Court enters the following schedule on consent: (1) The Parties shall confer and agree on a form of notice to any interested parties, a cost−effective method for providing notice to interested parties, and a proposal for soliciting and aggregating public comments for approval by this Court no later than July 17, 2018, after which this Court will enter a further implementing order governing the procedures for the hearing; (2) The Parties shall provide notice to any interested parties by July 24, 2018; (3) Any public comments must be in writing and received by August 21, 2018; (4) The Proposed

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07/18/2018
07/18/2018 08/10/2018 08/10/2018 08/10/2018

Intervenors shall file their motion to intervene by August 10, 2018, which shall include a brief of no more than 30 pages; (5) The United States, NYCHA, and the City shall file one consolidated opposition brief of no more than 30 pages by August 24, 2018; (6) The Proposed Intervenors shall file a reply brief of no more than 15 pages by August 31, 2018; (7) This Court will resolve the motion to intervene on submission; (8) The Parties shall file any motion for approval of their respective settlements by August 31, 2018; (9) Any opposition papers shall be filed by September 17, 2018; (10) Any reply papers shall be filed by September 21, 2018; and (11) The Parties and any interested party that has submitted a public comment in writing shall be heard on September 26, 2018 at 9:30 a.m. (Motions due by 8/31/2018. Responses due by 9/17/2018 Replies due by 9/21/2018. Fairness Hearing set for 9/26/2018 at 09:30 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 7/13/2018) (jwh) (Entered: 07/13/2018)
29 LETTER addressed to Judge William H. Pauley, III from Robert William Yalen dated July 17, 2018 re: Settlement Notices. Document filed by United States of America. (Attachments: # 1 Proposed Notice)(Yalen, Robert) (Entered: 07/17/2018)
30 LETTER addressed to Judge William H. Pauley, III from Nicole Gueron dated July 18, 2018 re: United States v. New York City Housing Authority, No. 18 Civ. 5213 (WHP). Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc..(Gueron, Nicole) (Entered: 07/18/2018)
31 MEMO ENDORSEMENT: on re: 29 Letter filed by United States of America. ENDORSEMENT: Application granted in part. This Court adopts the procedures set forth in paragraphs 1, 2, 3, 4, and 6. This Court further approves the form of notice except as to the section titled "Right to Comment," which shall be amended in accord with the Order Regarding Public Comment on the Proposed Settlements that is being issued simultaneously with this endorsement. The Order shall also accompany the parties' notice to be provided in accord with the procedures set forth in paragraphs 1−4. SO ORDERED. (Signed by Judge William H. Pauley, III on 7/18/2018) (ama) (Entered: 07/18/2018)
32 ORDER REGARDING PUBLIC COMMENT ON THE PROPOSED SETTLEMENTS: The parties in the cases captioned Baez, et al. v. NYCHA and United States v. NYCHA (the "Parties") each seek judicial approval of the proposed settlements submitted in those cases. The parties request that this Court solicit public comment through which interested individuals or organizations may address the proposed settlements. To assist in determining whether either or both of the proposed settlements should be approved, this Court will solicit input from interested members of the public through written comments and participation in a public hearing to be held in Courtroom 9C at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York at 9:30 a.m. on September 26, 2018. Accordingly, this Court adopts the following procedures that must be adhered to by any individual or organization wishing to provide written comments or to be heard at the public hearing. Letters must be received by August 21, 2018 to be considered. And as set forth herein. SO ORDERED., ( Status Conference set for 9/26/2018 at 09:30 AM in Courtroom 9C, 500 Pearl Street, New York, NY 10007 before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 7/18/2018) (ama) (Entered: 07/18/2018)
33 MEMO ENDORSEMENT: on re: 30 Letter, filed by City−Wide Council of Presidents, Inc., At−Risk Community Services, Inc. ENDORSEMENT: While this Court appreciates the proposed intervenors' concerns, their request is denied at this time. SO ORDERED. (Signed by Judge William H. Pauley, III on 7/18/2018) (ama) (Entered: 07/18/2018)
34 MOTION to Intervene . Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc..(Holsinger, Melissa) (Entered: 08/10/2018)
35 MEMORANDUM OF LAW in Support re: 34 MOTION to Intervene . . Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Holsinger, Melissa) (Entered: 08/10/2018)
36 DECLARATION of Daniel Barber in Support re: 34 MOTION to Intervene .. Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Holsinger, Melissa) (Entered: 08/10/2018)

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37 DECLARATION of Eliezer Hecht in Support re: 34 MOTION to Intervene .. Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Attachments: # 1 Exhibit Tenants' Petition, # 2 Exhibit Department of Investigation Report, # 3 Exhibit July 24, 2018 Letter, # 4 Exhibit Preliminary Injunction Order, # 5 Exhibit May 30, 2018 Email, # 6 Exhibit June 1, 2018 Email)(Holsinger, Melissa) (Entered: 08/10/2018)
38 MEMORANDUM OF LAW in Opposition re: 34 MOTION to Intervene . Consolidated Opposition of the United States, NYCHA, and the City of New York to the Motion to Intervene. Document filed by United States of America. (Yalen, Robert) (Entered: 08/24/2018)
39 LETTER MOTION for Leave to File Excess Pages addressed to Judge William H. Pauley, III from Robert William Yalen dated 8/29/2018. Document filed by United States of America.(Yalen, Robert) (Entered: 08/29/2018)
40 ORDER granting 39 Letter Motion for Leave to File Excess Pages: Application granted. (Signed by Judge William H. Pauley, III on 8/30/2018) (jwh) (Entered: 08/30/2018)
41 LETTER addressed to Judge William H. Pauley, III from Sharanya Mohan dated August 31, 2018 re: Public Comments. Document filed by United States of America. (Attachments: # 1 Index of Public Comments, # 2 Comments pp. 1−157, # 3 Comments pp. 158−299, # 4 Comments pp. 300−451, # 5 Comments pp. 452−619, # 6 Comments pp. 620−781, # 7 Comments pp. 782−899, # 8 Comments pp. 900−1124, # 9 Comments pp. 1125−1351, # 10 Comments pp. 1352−1575, # 11 Comments pp. 1576−1800, # 12 Comments pp. 1801−2022, # 13 Comments pp. 2023−2249, # 14 Comments pp. 2250−2473, # 15 Comments pp. 2474−2602, # 16 Comments pp. 2603−2687)(Mohan, Sharanya) (Entered: 08/31/2018)
42 FIRST REPLY MEMORANDUM OF LAW in Support re: 34 MOTION to Intervene . . Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Gueron, Nicole) (Entered: 08/31/2018)
43 MOTION to Approve Consent Judgment . Document filed by United States of America.(Yalen, Robert) (Entered: 08/31/2018)
44 MEMORANDUM OF LAW in Support re: 43 MOTION to Approve Consent Judgment . . Document filed by United States of America. (Yalen, Robert) (Entered: 08/31/2018)
45 DECLARATION of Monica P. Folch in Support re: 43 MOTION to Approve Consent Judgment .. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Yalen, Robert) (Entered: 08/31/2018)
46 MEMORANDUM OF LAW in Support re: 43 MOTION to Approve Consent Judgment . . Document filed by New York City Housing Authority. (Adegbile, Debo) (Entered: 08/31/2018)
47 MEMORANDUM OF LAW in Support re: 43 MOTION to Approve Consent Judgment . . Document filed by City of New York. (Pestana, Georgia) (Entered: 08/31/2018)
48 LETTER addressed to Judge William H. Pauley, III from Nicole Gueron dated September 4, 2018 re: documents filed in connection with motion to intervene. Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc..(Gueron, Nicole) (Entered: 09/04/2018)
49 OPINION & ORDER re: 34 MOTION to Intervene: For the foregoing reasons, CCOP and At−Risk's motion is granted in part. Intervention is granted solely for the limited purpose of opposing the Proposed Consent Decree and as otherwise limited by this Opinion & Order. This Court may, in its discretion, revise the scope of this limited intervention as this action unfolds. Any opposition papers by CCOP and At−Risk shall be filed by September 21, 2018, and any reply papers shall be filed by September 24, 2018. Paragraphs 9 and 10 of this Court's July 13, 2018 Scheduling Order are vacated. The Clerk of Court is directed to terminate the motion pending at ECF No. 34. (Set Deadlines/Hearing as to 43 MOTION to Approve Consent Judgment: Responses due by 9/21/2018, Replies due by 9/24/2018.) (Signed by Judge William H. Pauley, III on

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9/13/2018) (jwh) (Entered: 09/13/2018)
50 LETTER addressed to Judge William H. Pauley, III from Sharanya Mohan dated September 14, 2018 re: Additional Public Comments. Document filed by United States of America. (Attachments: # 1 Supplemental Index of Public Comments, # 2 Comments pp. 2688−2725)(Mohan, Sharanya) (Entered: 09/14/2018)
51 MOTION for Saurabh Sanghvi to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15597707. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York City Housing Authority. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing − NY, # 3 Certificate of Good Standing − DC, # 4 Text of Proposed Order)(Sanghvi, Saurabh) (Entered: 09/20/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 51 MOTION for Saurabh Sanghvi to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15597707. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/21/2018)
52 ORDER FOR ADMISSION PRO HAC VICE granting 51 Motion for Saurabh Sanghvi to Appear Pro Hac Vice. (Signed by Judge William H. Pauley, III on 9/21/2018) (jca) (Entered: 09/21/2018)
53 MEMORANDUM OF LAW in Opposition re: 43 MOTION to Approve Consent Judgment . . Document filed by At−Risk Community Services, Inc., City−Wide Council of Presidents, Inc.. (Holsinger, Melissa) (Entered: 09/21/2018)
54 ORDER REGARDING PROCEDURES FOR THE SEPTEMBER 26, 2018 HEARING: A public hearing on those settlements will be held in Courtroom 9C at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York at 9:30 a.m. on September 26, 2018. This Court adopts the following procedures that shall be adhered to by the parties and members of the public. Agenda: This Court will hear first from individuals and organizations who have submitted written comments and requested an opportunity to be heard. These individuals and organizations will be heard in the order in which this Court calls them to the podium, with more detailed instructions to be provided at the check−in area. All speakers shall first state their full name and if applicable, the organization with which they are affiliated or the NYCHA development in which they reside. To ensure that all may be heard, speakers will be limited to two (2) minutes each; and as further set forth herein. SO ORDERED. (Signed by Judge William H. Pauley, III on 9/21/2018) (anc) Modified on 1/30/2019 (anc). (Entered: 09/21/2018)
55 REPLY MEMORANDUM OF LAW in Support re: 43 MOTION to Approve Consent Judgment . (Reply Memorandum of Law in Support of Motion to Enter the Consent Decree). Document filed by New York City Housing Authority. (Adegbile, Debo) (Entered: 09/24/2018)
56 REPLY MEMORANDUM OF LAW in Support re: 43 MOTION to Approve Consent Judgment . and In Reply to Docket #53. Document filed by City of New York. (Pestana, Georgia) (Entered: 09/24/2018)
57 REPLY MEMORANDUM OF LAW in Support re: 43 MOTION to Approve Consent Judgment . . Document filed by United States of America. (Yalen, Robert) (Entered: 09/24/2018)
58 LETTER addressed to Judge William H. Pauley, III from Sharanya Mohan dated September 25, 2018 re: Additional Public Comments. Document filed by United States of America. (Attachments: # 1 Supplemental Index of Public Comments, # 2 Comments pp. 2726−2740, # 3 Comments pp. 2741−2757, # 4 Comments pp. 2758−2776)(Mohan, Sharanya) (Entered: 09/25/2018)
59 LETTER addressed to Judge William H. Pauley, III from Robert Yalen dated 9/25/2018 re: Motion to Enter. Document filed by United States of America.(Yalen, Robert) (Entered: 09/25/2018)
Minute Entry for proceedings held before Judge William H. Pauley, III: Fairness Hearing held on 9/26/2018. (Entered: 09/28/2018)

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61 NOTICE OF APPEARANCE by Mark W. Muschenheim on behalf of City of New York. (Muschenheim, Mark) (Entered: 09/27/2018)
62 LETTER addressed to Judge William H. Pauley, III from Sharanya Mohan dated October 11, 2018 re: Additional Public Comments. Document filed by United States of America. (Attachments: # 1 Supplemental Index of Public Comments, # 2 Comments pp. 2777−2801)(Mohan, Sharanya) (Entered: 10/11/2018)
63 LETTER addressed to Judge William H. Pauley, III from Dionne Boyd dated Undated re: Thank you. I hope this Thank you care finds you well. I have moved into my new apartment Oct 14th I am truly grateful thank you so much...for being so thoughtful. (jca) (Entered: 11/14/2018)
64 OPINION AND ORDER: This Court does not reject the Proposed Consent Decree lightly. The rejection of this decree will likely delay sorely needed relief for NYCHA tenants while the parties decide whether to re−negotiate, seek administrative remedies, litigate, or appeal, and a courts refusal to accept a proposed consent decree may have practical consequences for the governments ability to negotiate future settlements. Microsoft Corp., 56 F.3d at 1456. But as it stands, the proposed decree suffers from fatal procedural flaws, including its formless injunctive relief and enforcement mechanisms. The proposed decree also raises serious concerns implicating the separation of powers and the delegation of equitable judicial power, which appear attributable at least in part to the parties sidestepping of the existing statutory scheme to address public housing failures. And on a more basic level, the nature of the claims asserted by the Government raises questions as to the scope and applicability of Citigroup. Any judicial decree entered in this action will have a direct, tangible, and long−lasting impact not only on the parties, but most importantly on NYCHAs tenants. Because the Proposed Consent Decree is not fair and reasonable, and because its entry would disserve the public interest, the Governments motion for approval is denied. The parties are directed to submit a joint status report by December 14, 2018 detailing their respective positions on how they wish to proceed. That status report should also advise this Court regarding NYCHAs compliance to date with its obligations under paragraphs 67−70 of the Proposed Consent Decree. The Clerk of Court is directed to terminate the motion pending at ECF No. 43. SO ORDERED. (Signed by Judge William H. Pauley, III on 11/14/2018) (jca) (Entered: 11/14/2018)
65 TRANSCRIPT of Proceedings re: CORRECTED TRANSCRIPT held on 9/26/2018 before Judge William H. Pauley, III. Court Reporter/Transcriber: Michael McDaniel, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/28/2018. Redacted Transcript Deadline set for 1/7/2019. Release of Transcript Restriction set for 3/7/2019.(McGuirk, Kelly) (Entered: 12/07/2018)
66 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE CORRECTED proceeding held on 9/26/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 12/07/2018)
67 STATUS REPORT. (Joint) Document filed by New York City Housing Authority. (Attachments: # 1 Exhibit 1− EPA Pamphlet)(Adegbile, Debo) (Entered: 12/14/2018)
68 LETTER addressed to Judge William H. Pauley, III from EAST BROOKLYN CONGREGATIONS − an Affiliate of the Industrial Areas Foundation dated 12/12/2018 re: Public Comment on the Case. (jwh) (Entered: 12/17/2018)
69 STANDING ORDER M10−468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (jca) (Entered: 01/02/2019)
Case Stayed (jca) (Entered: 01/14/2019)

01/18/2019
01/18/2019
01/28/2019
01/31/2019 02/01/2019 03/14/2019
03/15/2019 03/15/2019 03/15/2019 05/03/2019

70 LETTER addressed to Mr. Stanley Brezenoff from Benjamin S. Carson, Sr., M.D. Secretary dated 12/14/2018 re: Please be advised that If an arrangement acceptable to the United States Department of Housing and Urban Development regarding the future of the New York City Housing Authority (NYCHA) is not reached on or before January 31, 2019, I Intend to declare a substantial default with respect to NYCHA and exercise appropriate remedies from the wide range available under the United States Housing Act of 1937, as amended, and other legal authorities. (rjm) (Entered: 01/18/2019)
71 MEMORANDUM AND ORDER. Though the public interests at stake are of paramount importance, a federal court that is neither democratically accountable nor an advocate for either side may only "adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction." Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 154 (1979). Accordingly, the parties should be prepared to advise this Court how they intend to litigate this case. So ordered. (Signed by Judge William H. Pauley, III on 1/18/2019) (rjm) (Entered: 01/18/2019)
72 LETTER addressed to Judge William H. Pauley, III from T. Komatsu, dated 1/28/19 re: Plaintiffs writes that, for these reasons(as indicated) as well as those which he has discussed at length in his letter to the Court dated 9/24/18, he urges Judge Pauley to make arrangements with Judge Schofield to diligently review the affidavit which he filed in his federal lawsuit on 1/23/19 along with its supporting affidavits mainly for the purpose of making a better−informed decision as to whether he can reasonably entrust the safety and well−being of tenants in NYCHA housing to the Mayor's administration. (sc) Modified on 1/29/2019 (sc). (Entered: 01/29/2019)
73 STATUS REPORT. Joint Status Report Document filed by United States of America.(Yalen, Robert) (Entered: 01/31/2019)
74 MEMO ENDORSEMENT on 73 STATUS REPORT. ENDORSEMENT: Application granted. This action is stayed as set forth herein. (Signed by Judge William H. Pauley, III on 2/1/2019) (jwh) (Entered: 02/01/2019)
75 NOTICE OF VOLUNTARY DISMISSAL pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above−captioned action is voluntarily dismissed, without prejudice against the defendant(s) New York City Housing Authority. Document filed by United States of America. Proposed document to be reviewed and processed by Clerk's Office staff (No action required by chambers).. (Attachments: # 1 Exhibit Agreement)(Yalen, Robert) (Entered: 03/14/2019)
***NOTICE TO COURT REGARDING NOTICE OF VOLUNTARY DISMISSAL Document No. 75 Notice of Voluntary Dismissal was reviewed and referred to Judge William H. Pauley, III for approval for the following reason(s): Settlement agreement attached. (km) (Entered: 03/15/2019)
76 NOTICE OF DISMISSAL WITHOUT PREJUDICE PURSUANT TO RULE 41(a)(1)(A)(i): NOW, THEREFORE, PLEASE TAKE NOTICE that pursuant to Rule 41(a)(1)(A)(i): The United States hereby dismisses the complaint in this action without prejudice. The Clerk of Court is directed to mark this case as closed. SO ORDERED. (Signed by Judge William H. Pauley, III on 3/15/2019) (ne) (Entered: 03/15/2019)
Terminate Transcript Deadlines (ne) (Entered: 03/15/2019)
77 LETTER addressed to Judge William H. Pauley, III from Debo P. Adegbile dated May 3, 2019 re: Inadvertent Error in Status Report. Document filed by New York City Housing Authority.(Adegbile, Debo) (Entered: 05/03/2019)

 
 Case 1:18-cv-05213 Document 1 Filed 06/11/18 Page 1 of 80

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York By: ROBERT WILLIAM YALEN
MÓNICA P. FOLCH JACOB LILLYWHITE TALIA KRAEMER SHARANYA MOHAN Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: (212) 637-2800 Fax: (212) 637-2702 Email: robert.yalen@usdoj.gov monica.folch@usdoj.gov jacob.lillywhite@usdoj.gov talia.kraemer@usdoj.gov sharanya.mohan@usdoj.gov

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

UNITED STATES OF AMERICA,

:

:

Plaintiff,

:

:

v.

:

:

NEW YORK CITY HOUSING AUTHORITY, :

:

Defendant.

:

:

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COMPLAINT 18 Civ. 5213

Plaintiff the United States of America (the “United States”), by its attorney, Geoffrey S.

Berman, United States Attorney for the Southern District of New York, alleges as follows:

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INTRODUCTION 1. The New York City Housing Authority (“NYCHA”) violates basic health and safety regulations of the U.S. Department of Housing and Urban Development (“HUD”). These regulations require NYCHA to protect children from the lead paint that is present within apartments in roughly thirty percent of NYCHA developments and, more generally, to provide residents decent, safe, and sanitary housing. NYCHA has repeatedly made false statements to HUD and the public regarding these issues, and has deceived HUD inspectors. 2. The people who suffer as a result of NYCHA’s misconduct are its residents, including lead-poisoned children; elderly residents without heat in winter; asthma sufferers whose condition is worsened by moldy and pest-infested apartments; and disabled residents without functioning elevators. 3. Lead is toxic, and there is no safe level of exposure; in children, lead can have devastating effects. The most common cause of lead poisoning in children is exposure to deteriorated lead paint. NYCHA knows that there is lead paint within apartment units in roughly thirty percent of its developments, but has failed—and continues to fail—to protect its residents from that paint when it peels and crumbles. NYCHA has for years failed to follow key HUD lead paint safety regulations including, among other things, by failing to find and remediate peeling lead paint in its developments and failing to ensure that NYCHA’s workers use lead-safe work practices to avoid disturbing lead paint that might injure residents. Since at least 2011, NYCHA senior managers have known that NYCHA was violating HUD lead paint requirements. Beyond HUD’s requirements, NYCHA has also violated lead paint safety regulations promulgated by the U.S. Environmental Protection Agency (“EPA”). 4. Children have been harmed as a result of NYCHA’s failures. Between 2010 and 2016 at least 19 lead-poisoned children were found to have been exposed to deteriorated lead
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paint in their NYCHA apartments. These 19 children are at risk of lifelong neurological problems. But the 19 cases understate the true extent of lead poisoning likely to have been caused by crumbling lead paint at NYCHA. Many hundreds of additional children living at NYCHA have been reported to the New York City Department of Health and Mental Hygiene (“NYC DOH”) as having tested at or above the Centers for Disease Control’s “reference level”—the level at which public health actions should be initiated. But NYC DOH is only able to investigate a fraction of the cases reported to it to determine whether the children’s apartments contain peeling lead paint. Moreover, NYC DOH’s information is incomplete because it is based solely on reports from medical professionals who have tested children for lead, and does not include the many children living at NYCHA who have not been tested but nonetheless may have lead poisoning. There is every reason to believe the true number of children with lead poisoning is materially higher.
5. Beyond lead paint, HUD regulations also require NYCHA to provide “decent, safe, and sanitary” housing. This “decent, safe, and sanitary” regulation requires not only that NYCHA comply with lead paint safety rules but also that it provide an environment free of mold and pest infestations and with adequate heat and functional elevators. Every year, NYCHA certifies that it is in fact complying with HUD’s regulations, and HUD has paid NYCHA billions of dollars to operate in compliance with them.
6. To enable HUD to determine whether public housing meets this basic standard, HUD created an inspection regime—the Public Housing Assessment System—to allow HUD to determine whether a housing agency is providing decent, safe, and sanitary housing. NYCHA has undermined HUD’s inspections by disguising the true condition of its properties. This deception included turning off water to developments to prevent HUD inspectors from observing leaks;
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posting “danger” signs to keep inspectors away from troubled areas; and temporarily hiding improperly stored hazardous materials. NYCHA management even included a document with suggestions for deceiving inspectors in NYCHA’s official training materials. This cover-up “how-to” guide was only removed in Summer 2017, after this Office called its existence to the attention of NYCHA’s outside lawyers.
7. NYCHA’s conduct undermined HUD’s inspection regime and HUD’s ability to use that regime to determine whether NYCHA complies with the “decent, safe, and sanitary” requirement. In fact, living conditions at NYCHA are far from “decent, safe, and sanitary.” Mold grows unchecked at many NYCHA developments, often on a large scale. Across the city, residents are provided inadequate heat in winter, leading to frigid apartment temperatures. Pests and vermin infestations are common, and as senior New York City officials have acknowledged, NYCHA “has no idea how to handle rats.” Elevators often fail, leaving elderly or disabled residents trapped in their apartments or sleeping in building lobbies because they cannot return to their homes. Leaks, peeling paint, and other deterioration are commonplace, but go unaddressed.
8. NYCHA is well aware that disclosing its failure to protect residents from lead paint and its failure to provide decent, safe and sanitary housing would lead to unwanted regulatory scrutiny—including potential limitations on future HUD funding. To avoid this, NYCHA hid conditions from inspectors and repeatedly made false statements to HUD and the public to cover up what can be covered up and minimize what cannot. NYCHA’s false statements have occurred both in formal submissions to HUD and in letters, emails, and press releases directed at HUD and the public.
9. Numerous false statements are detailed in this complaint. But some important examples are the following:
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• Every year from 2011 until well after this Office’s investigation began, NYCHA falsely certified to HUD that NYCHA will comply with HUD’s lead paint safety regulations and also complies with other applicable regulations, including those requiring “decent, safe, and sanitary” housing. NYCHA made these false certifications as part of its applications to obtain billions of dollars in funding from HUD. But during this entire period, NYCHA was substantially out of compliance with these important regulations.
• In 2015 and 2016, NYCHA made false statements to HUD and the public regarding its lead paint compliance. Press reports in 2015 told the story of a child with dangerously high levels of lead in her blood, and articles in 2016 reported on this Office’s investigation. To deflect the resulting scrutiny, NYCHA falsely told HUD and the public that NYCHA “complies with Federal, State, and City regulations concerning lead.” But during this entire period, NYCHA was substantially out of compliance with important lead paint regulations.
• In 2012 and 2013, NYCHA made false statements to HUD and the public about its maintenance work order backlog. To fend off concerns by HUD, the media, and local politicians that NYCHA’s large backlog of maintenance work was threatening living conditions at NYCHA, NYCHA began reporting reductions in its backlog, falsely claiming that the reductions resulted from “improved efficiency.” But in fact much of this reduction resulted not from improved efficiency but from NYCHA’s manipulation of the work order process so that it no longer reflected the work that NYCHA knew needed to be done.
When these false statements were made, senior NYCHA officials knew the true facts—directly
contrary to the false statements.
10. These examples illustrate the culture at NYCHA. NYCHA’s response to external
inquiries is frequently to cover up or minimize problems that it knows to exist; and executives
speaking for the agency (at best) fail to conduct basic diligence before providing HUD and the
public false assurances of compliance. The problems at NYCHA reflect management dysfunction
and organizational failure, including a culture where spin is often rewarded and accountability
often does not exist. As NYCHA’s former Chair and CEO (the “Chair”) put it when confronted
with an instance of NYCHA’s maintenance failures, “This is more than there isn’t any
money. . . .”
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11. To ensure NYCHA’s compliance with these critical regulations, to prevent further deceptive practices and to mitigate the ongoing effects of NYCHA’s past misconduct, the United States brings this action for injunctive relief and appointment of a monitor, pursuant to Section 6(j)(3) of the U.S. Housing Act of 1937 (“U.S. Housing Act”), 42 U.S.C. §§ 1437d(j)(3), and the federal Anti-Fraud Injunction Act, 18 U.S.C. § 1345, and for equitable relief pursuant to the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2616(a)(1).
JURISDICTION AND VENUE 12. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1345, 15 U.S.C. § 2616, and 42 U.S.C. § 1437d(j)(3). 13. Venue is proper in this district under 28 U.S.C. § 1391(b)(1) and (2), because the defendant resides in this district and because a substantial part of the events giving rise to the claims in this action occurred in this district.
PARTIES 14. Plaintiff is the United States of America. 15. Defendant NYCHA is a municipal housing agency created under Section 401 of New York State’s Public Housing Law. NYCHA is run by a chairperson and six other members of a board, all appointed by the Mayor of the City of New York.
BACKGROUND A. Public Housing
16. Since 1937, the United States has provided funding to assist states and localities in making decent, safe, and sanitary public housing available for low-income families. See U.S. Housing Act, Pub. Law 75-412, § 1.
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17. Today, approximately 1.2 million families live in public housing managed by roughly 2,900 housing agencies nationwide. HUD will provide approximately $7.3 billion to fund public housing across the country during Fiscal Year 2018. B. The New York City Housing Authority
18. NYCHA is by far the largest public housing agency in the United States, larger than the next eleven public housing agencies combined. NYCHA operates 326 developments, consisting of 2,462 residential buildings with approximately 175,000 apartments, located throughout New York City. NYCHA’s operating budget for public housing is about $2.3 billion, roughly $900 million of which are public housing funds provided by HUD. HUD also provides NYCHA more than $300 million per year in capital funding.
19. NYCHA public housing is home to nearly 400,000 low- and moderate-income residents.
20. Approximately 27% of NYCHA’s residents are children. Nearly 20% of residents are age 62 or older, and more than 37,000 NYCHA residents over 62 live alone. C. Senior NYCHA Operations Management
21. NYCHA’s Operations Department (“Operations”) is in charge of building maintenance and repair at NYCHA developments and therefore has a key role in ensuring NYCHA’s compliance with lead paint safety regulations and the “decent, safe, and sanitary” requirement.
22. The head of Operations from 2010 to early 2014 was an Executive Vice President for Operations, at times called a “Deputy General Manager” (the “EVP for Operations”). The EVP for Operations reported to NYCHA’s then-General Manager. Between early 2014 and 2018, NYCHA did not have an EVP for Operations.
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23. Two principal operations executives reported to the EVP for Operations when that position was filled. These individuals, originally serving as Vice-Presidents for Operations and subsequently given the titles Senior Vice-President for Operations (“SVP for Operations”) and Senior Vice-President for Support Services (“SVP for Support Services”), were effectively in charge of most of the Operations Department from the departure of the EVP for Operations in 2014 until late 2017.1
24. In recent years, the SVP for Operations was responsible for overseeing the day-today operations at many of NYCHA’s developments. The SVP for Support Services was responsible for specialized groups such as the lead detection and abatement unit, heating operations unit, and elevators unit. A third senior operations executive, with various titles including “Senior Vice President for NextGeneration Operations,” joined the senior operations staff in late 2015 and departed voluntarily in mid-2017. She oversaw certain operations at a subset of developments.
25. Operations executives would regularly discuss information on operations matters among themselves, with the General Manager and Chair, and with other NYCHA executives.
26. Among other things, every week, the SVP for Operations would meet with other senior NYCHA Operations executives, including the Borough Directors who supervise the developments, to discuss operations issues, including such matters as PHAS inspections, mold, leaks, and apartment inspections. The SVP for Support Services would attend these meetings when agenda items related to his group.
1 The same individuals held other titles at NYCHA between 2010 and 2017, although always retaining significant management responsibility over issues relevant to this Complaint. For example, the SVP for Operations previously had titles including “Vice President of Operations for Support Services” and “Vice President for Operations.” The SVP for Support Services previously had titles including “Senior Director of Technical Services.”
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27. Additionally, the General Manager would meet twice a week with the SVP for Operations, the SVP for Support Services and other senior executives to discuss operations issues. Until 2014, the SVP for Operations and SVP for Support Services would meet every week with the EVP for Operations to discuss similar issues.
28. The NYCHA Chair also would regularly discuss operations issues with the General Manager, the SVP for Operations, and the SVP for Support Services. The Chair communicated regularly with the General Manager on operations issues, including at a weekly meeting. The Chair also would routinely discuss operations-related problems directly with the SVP for Operations and SVP for Support Services as they arose, including at regularly scheduled meetings with them every other week. The agendas for meetings with the Chair included issues regarding lead-based paint, heating, elevator maintenance, mold remediation, work order reporting, and general development management.
29. Other than the Chair, the General Manager, the EVP for Operations (when the position was filled), the SVP for Operations and the SVP for Support Services, other senior managers have played a significant role in monitoring and addressing living conditions, maintenance work orders, and regulatory compliance at HUD’s developments, including the Director of Technical Services (“Director of Technical Services”), who was in charge of many aspects of NYCHA’s lead paint program and reported to the SVP for Support Services until November 2017.2
2 The same individual held other titles at NYCHA between 2010 and 2017, all relevant to NYCHA’s lead paint compliance.
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NYCHA HAS LONG VIOLATED KEY LEAD PAINT SAFETY REGULATIONS AND MADE FALSE STATEMENTS TO COVER UP ITS NONCOMPLIANCE
30. Since at least 2010, NYCHA has failed to comply with core lead paint safety regulations. Senior NYCHA officials have known of these violations, yet NYCHA executives have repeatedly, and falsely, reassured HUD and the public of NYCHA’s compliance. A. Lead Poisoning and the Lead Paint Safety Regulations
31. Lead is toxic. 32. Lead poisoning in children has particularly devastating consequences. Studies show that even very low levels of lead exposure can cause irreversible neurological problems, including learning disabilities, reduced attention spans, and behavioral problems. No level of lead exposure is safe. Even for adults, ingestion of small amounts of lead can cause or exacerbate serious health conditions, including cancer, hypertension, and kidney failure. 33. Lead poisoning is entirely preventable. The key is stopping children from coming into contact with lead. 34. The most common source of lead exposure is deteriorating lead paint in old housing.3 Children are easily poisoned when they put peeling lead paint flakes in their mouths or ingest lead paint dust, leading to neurological injuries that cannot be corrected. 35. In 1992, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act to, among other things, “reduce the threat of childhood lead poisoning in housing . . . assisted by the Federal Government.” 42 U.S.C. § 4851a(6). Pursuant to this statute, HUD in turn promulgated the “Lead-Safe Housing Rule.” 24 C.F.R. part 35, subparts B-R (Lead-Safe Housing
3 The terms “lead paint” and “lead paint hazards” as used in this Complaint shall have the same meaning as the terms “lead-based paint” and “lead-based paint hazards,” respectively, as defined in section 35.110 of the Lead Safe Housing Rule, 24 C.F.R. § 35.110.
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Rule). The Lead-Safe Housing Rule “establish[es] procedures to eliminate as far as practicable lead-based paint hazards” in federally funded housing, including public housing such as NYCHA. 24 C.F.R. § 35.1100.
36. In 2008, pursuant to the Toxic Substances Control Act, 15 U.S.C. § 2616(a)(1), EPA promulgated the Renovation, Repair, and Painting Rule (“RRP Rule”) to reduce the risk of lead exposure in the course of certain renovations. 40 C.F.R. part 745, subpart E.
37. EPA has also promulgated regulations regarding “Lead-Based Paint Activities” including the abatement of lead paint (the “Abatement Rule”). See 40 C.F.R. part 745, subpart L.
38. Additionally, HUD and EPA also promulgated substantively identical versions of a “Lead Disclosure Rule,” which requires landlords like NYCHA to inform most tenants in housing built prior to 1978 of known lead paint and lead paint hazards, and to disclose related reports and information. 24 C.F.R. part 35, subpart A (HUD’s Lead Disclosure Rule); 40 C.F.R. part 745, subpart F (EPA’s Lead Disclosure Rule).
39. As applied to public housing, these rules set forth a comprehensive regime intended to protect public housing residents from lead poisoning.
1. The Lead-Safe Housing Rule 40. Under the Lead-Safe Housing Rule, housing agencies like NYCHA must conduct lead paint inspections to determine whether and where lead paint exists in their developments. 24 C.F.R. § 35.1115(a). In certain circumstances, HUD permits housing agencies to use a sampling method that allows them to inspect a subset of apartments and extrapolate the results to the remaining apartments. 41. To the extent that lead paint is found in these inspections, the housing agency must ultimately abate it. 24 C.F.R. § 35.1120(a). Until such time as abatement occurs, the housing
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agency must put in place “interim controls” designed to prevent deterioration of lead paint and protect residents from lead poisoning. 24 C.F.R. § 35.1120.
42. The process of ensuring that interim controls are in place includes performance of a “risk assessment” to identify lead paint hazards. 24 C.F.R. § 35.1115(b). A lead paint hazard is “any condition that causes exposure to lead from dust-lead hazards, soil-lead hazards, or leadbased paint that is deteriorated or present in chewable surfaces, friction surfaces, or impact surfaces, and that would result in adverse human health effects.” 24 C.F.R. § 35.110. Thus, for example, peeling lead paint is a lead paint hazard because a child could ingest loose flakes of paint. Similarly, lead paint on a portion of a window that is subject to abrasion or friction from repeated opening and closing is a lead paint hazard because it is likely to produce lead dust that a child may ingest.
43. Once lead paint hazards are identified, “interim controls” must be put in place. Interim controls are measures that temporarily reduce the risk of exposure to lead paint, such as painting over lead paint or rehanging doors to minimize friction. 24 C.F.R. § 35.1330. Interim controls must be put in place by specially trained employees, using safe work practices and taking steps to protect residents. 24 C.F.R. § 35.1330(a)-(e).
44. Because interim controls are inherently temporary and do not eliminate the risk of lead exposure, a housing agency must monitor and maintain those controls and respond to any breakdown. The regulations include four core requirements:
45. First, the housing agency must conduct risk assessment reevaluations every two years to identify any new or reappearing lead paint hazards in developments with lead paint, unless two consecutive reevaluations separated by at least two years demonstrate the absence of such hazards. 24 C.F.R. § 35.1355(b)(4).
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46. Second, the housing agency must also conduct a visual assessment of every
apartment with lead paint every year, as well as at unit turnover, to look for visual evidence of
“deteriorated paint . . . and the failure of any hazard reduction measures.” 24 C.F.R.
§ 35.1355(a)(2).
47. Third, the housing agency must respond urgently when a child under six living in
the building is reported to have a blood lead level that is greater than or equal to the
“Environmental Intervention Blood Lead Level” or “EIBLL.” See 24 C.F.R. §§ 35.110, 1130 (prior to amendment by 82 Fed. Reg. 4151 (Jan. 13, 2017)).4 In response, the housing agency
must not only contain hazards in the child’s apartment, but also perform a new risk assessment of
the entire building if the building had previously been determined to be free of lead paint or lead
paint hazards. 24 C.F.R. § 35.1130(f) (prior to amendment by 82 Fed. Reg. 4151 (Jan. 13, 2017)).5 The housing agency is also required to notify HUD that a child living at NYCHA has
been found to have an EIBLL. 24 C.F.R. § 35.1130(e)(2).
48. Fourth, the housing agency must make sure its workers do not themselves create
lead paint hazards when working in apartments, by requiring workers to use safe work practices
4 The relevant regulations have recently been modified to lower the blood lead level that requires the actions described in this paragraph, as well as to change certain terminology and modify the actions to be taken. For most of the period relevant to this complaint, the blood lead level requiring NYCHA’s immediate response was defined as 20 micrograms per deciliter, or 15-19 micrograms per deciliter in two tests taken at least three months apart, and was known as the “Environmental Intervention Blood Lead Level.” 24 C.F.R. §§ 35.110, 1130 (prior to amendment by 82 Fed. Reg. 4151 (Jan. 13, 2017)). Beginning in July 2017, a standard of 5 micrograms per deciliter has applied. Under the new standard, the terminology for the urgent action level is “Elevated Blood Lead Level.” 82 Fed. Reg. 4151 (Jan. 13, 2017). For the purpose of consistency in this Complaint, the Government will use only the term EIBLL, but in doing so should be understood to refer to the applicable blood lead level requiring such actions at a given point in time. 5 Subsequent to the recent amendments, the regulations instead require a new risk assessment for all apartments containing or expected to contain children under six years old. 24 C.F.R. § 35.1130(f)(1).
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when performing any maintenance or renovation work that may disturb lead paint beyond a two square foot de minimis level. 24 C.F.R. §§ 35.1345, 35.1350, 35.1355(a)(4). These lead-safe work practices requirements include warning residents about work to be performed and ensuring that they are not present in the worksite; preparing the worksite to prevent the release of lead dust and contain lead paint dust and other debris; and using safe paint removal and worksite cleaning methods. Id. §§ 35.1345, 35.1350. Employees performing this work must be specifically trained in the use of lead-safe work practices.
2. The RRP Rule 49. EPA’s RRP Rule is a second regulation requiring that NYCHA employ lead-safe work practices when conducting work that disturbs lead paint. The RRP Rule governs residential “renovations,” defined broadly to mean “modification of any existing structure, or portion thereof, that results in the disturbance of painted surfaces,” provided that (i) the work disturbs more than six square feet per room of interior painted surfaces, more than twenty square feet of exterior painted surfaces, or (regardless of size) involves performing window replacements or demolition of painted surface areas, 40 C.F.R. § 745.83; (ii) the work is “for compensation,” 40 C.F.R. §§ 745.80; and (iii) the building is “target housing,” which generally means housing built prior to 1978 where the surface in question has not been tested and found lead-based paint free, 15 U.S.C. § 2681(17); 40 C.F.R. § 745.82. Work by NYCHA employees is “for compensation” in that NYCHA charges rent to residents and pays wages to its employees. 50. The substantive requirements of the RRP Rule are similar to the safe work practices elements of HUD’s Lead-Safe Housing Rule. As an entity performing “renovations,” NYCHA must, among other things, have (i) have at least one trained “Certified Renovator” performing or directing the work, 40 C.F.R. §§ 745.81(a)(3), 745.89(d)(2), & 745.90(a); (ii) ensure that other workers are trained in lead-safe work practices, 40 C.F.R. §§ 745.81(a)(3) &
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745.89(d)(1); (iii) follow safe work-practice requirements before, during, after the renovation, 40 C.F.R. §§ 745.85, 745.89(d)(3); (iv) provide notice to individuals in the vicinity of the work area, 40 C.F.R. §§ 745.84(a) 745.85(a)(1), 745.89(d)(3), 745.89(d)(4); and (v) document compliance with the safe work practice requirements, 40 C.F.R. §§ 745.86(b)(6), 745.89(d)(5).
3. EPA’s Abatement Rule 51. The Abatement Rule requires that anyone engaged in the abatement of lead paint is appropriately trained by an EPA accredited program and certified in carrying out the specific abatement activities. 40 C.F.R. part 745, subpart L. The Abatement Rule also establishes work practice standards for abatement activities. Id. EPA’s abatement work practice standards require, among other things, that the entity performing lead abatement (i) notify EPA before any abatement activities are conducted; (ii) develop an occupant protection describing all measures and management procedures to be taken to protect building occupants from exposure to any leadbased paint hazards; and (iii) follow post-abatement clearance procedures, including random sampling of other residential units in a multi-family dwelling and the preparation of a final abatement report.. See 40 C.F.R. §§ 745.227(e)(1), (5)(i), (8), (9), (10). The Abatement Rule further identifies practices and methodologies appropriate for use in the course of abatement, which provide instructions for notifying and warning residents, containing lead dust and debris, and cleaning the site after abatement. See 40 C.F.R. § 745.227(a)(3) (incorporating, among other standards, those of the U.S. Department of Housing and Urban Development Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, Ch. 12, available at https://www.hud.gov/sites/documents/ch12_abatement_121212.pdf). 4. The Lead Disclosure Rule 52. The Lead Disclosure Rule requires landlords—including public housing agencies—to provide tenants information about the presence of lead paint or lead paint hazards in
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their apartments when they sign a new (or, in some cases, renewal) lease in most housing built prior to 1978. 24 C.F.R. part 35, subpart A; 40 C.F.R. part 745, subpart F. The information that must be provided includes “any . . . information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.” 24 C.F.R. § 35.88(a)(2); 40 C.F.R. § 745.107(a)(2). It also requires landlords to provide tenants all records or reports regarding lead paint, including building-wide evaluations. 24 C.F.R. § 35.88(a)(4); 40 C.F.R. § 745.107(a). B. For Years, NYCHA Has Failed to Comply With Key Lead Paint Safety Regulations
53. NYCHA has repeatedly violated these key lead paint safety regulations. 54. Although NYCHA has said publicly that lead paint was “not widely applied in NYCHA” or that “the vast majority of NYCHA developments do not have lead paint,” this is simply untrue. NYCHA’s own documents show that, in fact, more than half of NYCHA’s developments have lead paint somewhere, and at least 92 developments have lead paint in apartment units. NYCHA has found lead paint on walls, floors, ceilings, windows, doors, radiators, pipes, and other locations within apartments. 55. In the early 2000s, NYCHA conducted lead paint inspections throughout the many developments built before lead paint was banned in 1978. For each such development, NYCHA selected a random sample of apartment units to inspect and applied those results to other apartments in the development. Based on this sampling method, NYCHA claimed that approximately 76,000 apartments in certain developments contained lead-based paint, and that others were lead-based paint free. NYCHA further claims to have reduced the number of apartments containing lead paint from 76,000 to approximately 48,000 through inspections and abatements.
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56. However, there is ample reason to question NYCHA’s determinations as to the number of units with lead paint. Eight of the 19 children found by NYC DOH inspectors to have been exposed to lead paint hazards in NYCHA apartments between 2010 and 2016 lived in developments NYCHA had deemed to be lead free. More recently, New York State health inspectors have found lead paint in at least three other developments NYCHA has deemed to be lead free. And New York City’s Department of Housing Preservation and Development has called into question NYCHA’s claim that it confirmed the absence of lead paint in at least 4,000 NYCHA apartments.
57. Even accepting NYCHA’s numbers means that lead paint has been determined to exist, today, in approximately 51,000 apartments in at least 1,200 buildings in at least 92 NYCHA developments.6 Approximately 173,000 residents—including approximately 11,500 children under six years old—live in these developments.
58. Peeling paint is pervasive in NYCHA developments. NYCHA’s data shows that in 2016 alone, residents logged more than 38,000 complaints related to paint and plaster issues at developments containing lead paint.
59. In light of these facts, one would expect a heightened attention to lead paint safety at NYCHA. But, to the contrary, NYCHA broadly fails to follow lead paint safety regulations.
60. Risk Assessment Reevaluations: Since at least 2010, NYCHA has violated HUD’s requirement that it perform periodic risk assessment reevaluations of apartment units and common areas in developments containing lead paint. 24 C.F.R. § 35.1355(b)(4). Under this requirement, NYCHA must have licensed or certified risk assessors inspect developments for lead paint hazards every two years and propose methods of containing or abating those hazards. Id.
6 The developments are listed in the attached Exhibit A.
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The two-year cycle continues until a particular development is determined to be lead-based paint free or has two reevaluations in a row showing no lead paint hazards. As a result of this two-year cycle, from 2010 to 2017, NYCHA would be expected to have conducted at least four risk assessment reevaluations in each of the at least 92 developments that NYCHA concedes contain lead paint in apartments, for a total of at least 368 risk assessment reevaluations. But NYCHA conducted less than 25% of the required reevaluations in those eight years. At 50 developments known to contain lead paint in apartment units, NYCHA conducted zero risk assessment reevaluations from 2010 to 2017.
61. NYCHA’s failure to conduct regular risk assessment reevaluations undermines the entire structure of HUD’s lead paint safety regulations: If a public housing agency does not immediately abate all of its lead paint and chooses instead to use temporary methods to prevent exposure, the public housing agency must closely monitor the lead paint to head off exposure risks. NYCHA, however, ignores the risks and exposes its residents to lead paint.
62. Visual Assessments: Since at least 2010, NYCHA has also violated the regulations requiring it to have trained inspectors conduct annual visual assessments of every apartment unit and common area determined to contain lead paint to identify deteriorated paint, unusual amounts of dust, and paint-related debris on or around lead paint surfaces, as well as structural problems that may be causing those conditions.
63. As with risk assessment reevaluations, visual assessments are critical to identifying and addressing lead paint hazards before a resident or employee is exposed. And yet NYCHA deliberately disregarded this obligation year after year, putting residents at risk.
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64. Prior to 2012, NYCHA claims that it conducted visual assessments as part of its annual inspections of apartments. However, those inspections did not include proper visual assessments for lead paint hazards as required by HUD regulations and related local laws.
65. NYCHA concedes that it stopped performing even these annual inspections in 2012 and has yet to come into compliance with the visual assessment requirement.
66. It was not until May 2016—half a year after this Office first sought information from NYCHA about its compliance with HUD’s lead paint safety regulations—that NYCHA began conducting the visual assessments required by HUD’s regulations. Even then, NYCHA limited these visual assessments to approximately 4,200 apartment units where children under six years old lived, rather than inspecting all apartments determined to have lead paint, as required by HUD’s regulations. And NYCHA has since acknowledged that even this small number of visual assessments were conducted by NYCHA employees who were not trained to perform the inspections.
67. Nonetheless, the results of NYCHA’s partial 2016 effort at visual assessments demonstrate its overall failure to properly protect children from lead poisoning: The 4,000 visual assessments in apartments NYCHA has determined to contain lead paint generated approximately 3,900 work orders for repairs of failing interim controls in approximately 1,500 apartments inhabited by children under the age of six. Approximately 2,200 of these work orders described surfaces that had “peeling, flaking, chalking, alligatored, [and] chipping [paint] or appeared to have been chewed on.” And roughly 600 of them were for “[d]oors and windows including frames molding and jambs” that were “sticking or rubbing together or have markings such as denting or chipping[,] indicating damage by repeated sudden force.”
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68. In 2017, NYCHA performed visual assessments in almost 9,000 additional apartments. More than 80% of these apartments were found to have potential lead paint hazards.
69. Lead-Safe Work Practices: Since at least 2010, NYCHA has violated HUD’s and EPA’s lead-safe work practice requirements, including requirements that NYCHA prevent residents from going into the work area; seal doors, windows, and vents with protective sheeting; and thoroughly clean the work area after the work has been completed. 24 C.F.R. §§ 35.1330, 35.1345(a), & 35.1350; 40 C.F.R. part 745, subpart E.
70. NYCHA fails to comply with these requirements. Instead, NYCHA sends workers into developments containing lead paint to demolish walls, scrape paint, clean mold, or perform other work that will disturb paint without even checking whether those surfaces contain lead. NYCHA does not consider whether those surfaces have lead paint before sending the workers; and it does not tell the workers about the surfaces that do have lead paint.
71. Moreover, even if NYCHA gave its workers information about lead paint surfaces, the vast majority of workers could not make use of that information because they are not trained to use lead-safe work practices. 24 C.F.R. §§ 35.1330(a)(4) & 35.1350(d) (requiring trained workers or supervisors); 40 C.F.R. § 745.89(d)(1), 745.89(d)(2), 745.90(b)(2) (requiring certified renovators and trained workers). NYCHA has no system in place to ensure that only trained workers are assigned to jobs requiring lead-safe work practices. And until August 2017, NYCHA had last trained its workers on lead-safe work practices in 2008.
72. As a result, maintenance work is routinely performed in developments with lead paint by NYCHA employees who do not know where the lead paint is. Beyond that, even if they learned that a particular job involved a lead paint surface, few of them have been trained to handle the work safely. At the Williamsburg Houses in Brooklyn, for example, where NYCHA’s own
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testing showed that 91 percent of all apartments tested have lead paint, there were 1,800 paint and plaster-related jobs in 2016 alone. Yet only six percent of the workers performing this work were trained in lead-safe work practices. Similarly, at the Bronx River Houses, where 98 percent of apartments tested have lead paint, there were nearly 1,900 paint and plaster-related jobs in 2016, only twelve percent of which were performed by trained workers. Similarly, at Harlem River Houses in Manhattan, where NYCHA itself concedes that there was “systematic application” of lead paint on walls and other surfaces, there were more than 700 paint and plaster-related jobs in 2016, only eleven percent of which were performed by trained workers.
73. NYCHA’s records show repeated violations of these regulations. For example, at the Williamsburg Houses, which were built in the 1930s and where NYCHA believes that it is “likely” that apartment ceilings and walls (and other locations) contain lead paint, NYCHA sent a worker to paint a peeling kitchen ceiling in December 2016. This worker was not trained in leadsafe work practices.
74. And in Harlem River Houses, which were also built in the 1930s, NYCHA sends employees untrained in lead safe work practices to perform work on surfaces that NYCHA itself has acknowledged had “systematic application” of lead paint. For example:
• In January 2016, NYCHA completed a work order that indicated that the entire bathroom required “demo[lition]” and painting in a Harlem River apartment. NYCHA failed to use trained workers to perform the demolition and painting work on surfaces that NYCHA believes had “systematic application” of lead paint.
• In October 2015, NYCHA performed work in a Harlem River apartment that, according to NYCHA’s work order database, required “demoli[tion]” and “paint[ing]” for plumbing repairs. NYCHA did not use trained workers to perform any of the work, even though NYCHA’s own testing shows that the walls demolished and repaired “likely” contained lead paint.
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• In April 2015, NYCHA sent workers to a Harlem River apartment to repair a “badly damaged” bedroom wall that “likely” contained lead paint. None of the workers sent to repair the damaged wall were trained to perform the work.
75. NYCHA fails to comply with lead-safe work practices under the Lead-Safe Housing Rule and the RRP Rule in performing this work. As a result, on these and numerous other occasions, workers will have performed work without providing the necessary warnings to residents, preparing the worksite to protect residents against exposure, or performing safe work practices and necessary clearance procedures, and without having the appropriate training or (in the case of work covered by the RRP Rule) assigning a certified renovator to direct the work.
76. EIBLL Reporting: NYCHA also violates the requirement that it “report each known case of a child under [the] age of six with an environmental intervention blood lead level” to HUD. 24 C.F.R. § 35.1130(e)(2). From at least 2010 until 2016, NYCHA failed to provide HUD any information regarding children living at NYCHA with EIBLLs, despite the existence of numerous such cases.
77. From 2010 until 2015, NYC DOH informed NYCHA of at least 68 children living in NYCHA with elevated blood lead levels. Because NYC DOH’s age and blood lead level criteria for reporting lead poisonings differ from HUD’s reporting criteria, the fact that NYC DOH reported these 68 cases to NYCHA does not automatically mean that NYCHA was obligated to report them all to HUD. But NYCHA could have sought additional information from its own files or from NYC DOH to ascertain which of the 68 cases of lead poisoning NYCHA was required to report to HUD. NYCHA did not take that approach, nor did it attempt to determine whether it needed to report these poisoned children to HUD. Rather, NYCHA did not report these cases to HUD until after this Office’s investigation began.
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78. EIBLL Risk Assessments: NYCHA has also violated HUD’s (pre-July 2017) requirement to conduct a risk assessment of a development that was previously assumed to be lead-based paint free if a child with an EIBLL is found in an apartment in the development with lead paint hazards. 24 C.F.R. § 35.1130(f). The reason for this requirement is obvious: the lead poisoning of a child and identification of lead paint hazards in that child’s apartment demonstrate that the development does, in fact, have lead paint and lead paint hazards.
79. Of the children with EIBLLs between 2010 and 2015, at least four lived in developments that NYCHA has determined to be lead-free.7 None of these developments has had a subsequent risk assessment performed. Thus, NYCHA has continued to treat these four developments as if they are lead paint free and lead paint hazard free, when the evidence shows they are not.
80. Lead Abatement: NYCHA also fails to comply with the Abatement Rule, including by failing to employ lead safe work practices in the course of abatement work. On multiple occasions, NYC DOH inspectors have observed “[abatement] work being done unsafely,” and uncontained “visible construction dust or debris” at NYCHA. And on one occasion, a NYC DOH inspector noted NYCHA’s failure to follow lead abatement practices, even when NYCHA workers refused to allow access to the apartment. In March 2015, a NYC DOH inspector visited an apartment undergoing abatement in the Sumner Houses, a development that contains lead paint inside apartments, including on walls. The inspector noticed ongoing construction work, but NYCHA workers “wouldn’t allow her in, even after she identified herself and showed her badge and [identification].” Still, the NYC DOH inspector was able to “observe[] no safety rules being followed,” including “no warning signs posted” and “no proper . . .
7 These developments are listed in the attached Exhibit B.
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enclosure[s].” She also observed “stripped paint shavings on the floor which had no plastic covering.” When NYC DOH followed up with a senior NYCHA manager, the manager suggested that the inspector may have been denied access because the inspector did not have her own safety equipment. But the inspector did not accept that explanation: “I highly doubt myself that it was a safety issue, as the workers made no mention of it. I just think they (NYCHA) had enough time to think about it and come back with a plausible rebuttal. It’s all a learning experience!!!!!!”
81. Disclosure of Lead Information: Although NYCHA developments do make some of the disclosures required by the Lead Disclosure Rule, NYCHA management knows that they do not consistently comply fully with the regulation. 24 C.F.R. part 35, subpart A; 40 C.F.R. part 745, subpart F. For example, before one HUD inspection, NYCHA managers discovered an entire development without the required documents. NYCHA management has also found that the developments generally fail to maintain and disclose risk assessment reevaluations reports as required.
82. Public Health Consequences of NYCHA’s Violations. NYCHA’s violations have serious public health consequences. At least 19 children had elevated blood lead levels while living in NYCHA apartments found to have lead paint hazards. But this number understates the true extent of the harm likely caused by NYCHA’s violations.
83. NYC DOH’s data shows that many hundreds of additional children living in NYCHA housing have been found to have blood lead levels of 5 micrograms per deciliter or more. Studies have found that blood lead levels of even 5 micrograms per deciliter in children are associated with brain function deficits, including learning disabilities and behavioral problems. Indeed, 5 micrograms per deciliter is the current reference level at which the Centers for Disease
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Control and Prevention recommends public health actions be initiated. However, NYC DOH generally has not conducted environmental investigations for blood lead levels below 10 or 15 micrograms per deciliter (depending on the child’s age), nor has it reported such cases to NYCHA; as a result, neither NYCHA nor NYC DOH has investigated whether the vast majority of children with elevated blood lead levels were exposed to lead paint in their NYCHA apartments.
84. Between 2010 and 2015, NYC DOH identified 202 children living in NYCHA with elevated blood lead levels of 10 micrograms per deciliter or more. NYC DOH inspected the homes of 121 of these children, and did not inspect the homes of 81 of these children.
85. Of the 121 children with elevated blood lead levels whose homes were inspected, NYC DOH found peeling lead paint in the homes of 68 children, and issued corresponding orders to NYCHA to abate the lead paint. But it is NYCHA policy to contest each and every NYC DOH order to abate lead paint. NYCHA’s process for contesting the lead paint finding is to send its own employees to retrieve a sample of the paint that NYC DOH identified to be positive for lead, and send that sample to a third-party laboratory to test for lead. As a result of this contestation process, NYC DOH retracted its findings of lead paint in the NYCHA homes of 50 children, leaving 18 confirmed cases. In 2016, NYC DOH confirmed one more case.
86. Success in the contestation process does not answer the question whether the child was poisoned by lead paint in the home. For example, one lead poisoned child lives in Red Hook Houses in Brooklyn. In July 2013, the child was found to have a blood lead level of 12 micrograms per deciliter at the age of four. When NYC DOH inspected the child’s NYCHA apartment, it found four wall surfaces with disturbed paint that tested positive for lead. NYC DOH also “observed a huge hole on wall #4 of the apt foyer and wall #2 of the kitchen with
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severe chipping paint resulting in gross dust from the paint.” NYC DOH noted that the “holes in the walls and severe chipping paints [were] the result of a burst pipe in the wall,” which “was fixed but not the holes.” (During the same inspection, NYC DOH observed “an infestation of roaches in every room of the apartment.”) Approximately a week later, NYC DOH issued an order requiring NYCHA to abate the lead paint.
87. However, consistent with NYCHA’s policy to contest every NYC DOH order to abate lead paint, NYCHA immediately contested NYC DOH’s testing results. NYCHA conducted its own testing, which showed results contradicting NYC DOH’s. Ultimately, NYC DOH agreed to withdraw its order to abate. But in a follow-up inspection, NYC DOH again found that the child’s apartment contained lead “exceeding allowable limits,” this time as revealed by dust wipes. NYCHA was ordered to “immediately remove such nuisance” by cleaning the dust off the surfaces. One week later, NYCHA complied.
88. For yet another reason, these numbers likely understate the number of affected children at NYCHA. NYC DOH’s information comes from doctor reported blood lead test results. And according to NYC DOH’s data, only fifty-one percent of children in New York City receive lead testing at the recommended ages of one and two. Even those tests would not identify a child exposed to lead paint for the first time at three years old, when exposure can still cause irreversible brain damage.
89. Whether the total is 19 poisoned children or a larger number, it is critical that NYCHA comply with applicable lead paint regulations to protect the public health, a fact well known to NYCHA’s management. As a NYCHA executive explained in an email expressing concern about delay in commencing NYCHA’s visual assessments:
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[A]ny delay to make safe an [apartment] that has a child under 6 and we have identified a potential hazard leaves us open to possibly extend an exposure period that we can remediate relatively simply. 90. He added, recognizing not just the potential health consequences but also how the public would view the moral gravity of the situation: If [the press] show up and the resident shows a surface with defective paint, that we have already identified as such, then shows a disclosure stating that the failed coating is presumed to contain lead but we are waiting before we remediate to do further testing knowing a child resides in the apt, we are toast. C. NYCHA Has Repeatedly Made False Statements to Cover Up Its Failure to Follow Lead Paint Safety Regulations 91. NYCHA has repeatedly made false statements to HUD and the public about its failure to comply with federal law mandating lead paint safety. 92. Every year since at least 2010 through 2016, NYCHA has submitted certifications to HUD stating that NYCHA will comply with HUD’s lead paint safety regulations. Moreover, in the same certifications and other filings with HUD, NYCHA asserts its compliance with all applicable HUD regulations, including both the lead paint safety regulations and the “decent, safe, and sanitary” regulation that incorporates the lead paint requirements. In addition, every year, NYCHA submits a statement to New York City for inclusion in New York City’s Consolidated Plan to HUD, falsely stating that “NYCHA complies with Federal, State, and City regulations concerning lead and executes HUD directives regarding lead-based paint (LBP).” It has made similar statements in response to outreach from HUD. 93. But NYCHA has been in violation of the regulations all along, and NYCHA managers knew it.
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1. NYCHA’s Senior Operations Managers Were Aware That NYCHA Violates HUD’s Lead Paint Safety Regulations
94. High-level NYCHA officials were aware that NYCHA was not in compliance with HUD’s lead paint safety regulations.
95. Risk Assessment Reevaluations. NYCHA senior Operations managers have known for many years that NYCHA is in violation of the risk assessment reevaluation requirement: In 2011, an email between two senior Operations managers explained that although risk assessment reevaluations are “supposed to take about 2 years between cycles, with staffing and contractor issues that has historically not been possible.” At that time, one of these individuals relayed the information to a more senior NYCHA executive. Approximately, one year later two NYCHA senior Operations officials again discussed NYCHA’s failure to conduct required risk assessment reevaluations. In 2016, a NYCHA executive raised the issue again with another senior executive, telling him that NYCHA was not conducting risk assessment reevaluations as required, and requesting funding to conduct additional reevaluations. But the funding request was denied, allowing matters to get worse.
96. Visual Assessments. NYCHA senior Operations managers have also been aware that NYCHA was failing to conduct visual assessments for lead paint, which in many cases are required under both HUD regulations and City law. A NYCHA executive has acknowledged that he was aware as early as 2013 that NYCHA was failing to conduct required visual assessments, and that he raised the problem with the senior executive to whom he then reported. Separately, internal NYCHA emails from 2015 show that NYCHA considered—but rejected—conducting visual assessments in a pilot inspection program. In July 2015, an email was sent to NYCHA Operations executives and senior managers by a NYCHA manager with the subject line “Apartment Inspections – Need to incorporate Lead.” The email “remind[ed] everyone” that
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“while we agreed” that “we would not concern ourselves” with lead inspections required by City law in connection with rolling out a pilot program of Operations Department inspections at that time, “we said . . . when we build out the [inspections] program, we would incorporate this need.”
97. Approximately nine months later, the NYCHA Chair learned that NYCHA had failed to perform the visual assessments required under local law, and thereafter learned that NYCHA’s failure violated federal law.
98. NYCHA did not begin conducting visual assessments in apartments determined to contain lead paint until May 2016, and still has failed to conduct even one visual assessment at tens of thousands of covered apartments.
99. Lead-Safe Work Practices. NYCHA managers were also aware that NYCHA was in violation of HUD’s lead-safe work practices requirement. Senior NYCHA officials knew that NYCHA never had—and still does not have—a system to notify maintenance workers when their work would impact lead paint surfaces, triggering the need for lead-safe work practices. In 2015, for example, at least two NYCHA officials considered sending lead paint information to those developments with widespread lead paint, but did not do so. Additionally, on at least two separate occasions, senior NYCHA personnel discussed the possibility of integrating information about the location of lead paint into NYCHA’s maintenance work order systems, but this was not done.
100. Beyond that, NYCHA management knew that even if it notified workers about the presence of lead paint, few workers had been trained on lead-safe work practices. Before this Office’s investigation began, the last time NYCHA had trained a significant number of workers to follow lead-safe work practices was in 2008. At least two senior Operations officials knew that this shortfall of trained workers grew more extreme with the passage of time. Indeed, in a May
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2016 email, one senior NYCHA manager overseeing properties in Brooklyn advised a NYCHA senior Operations executive that “there [were] only 33 paint[ers]/paint supervisors trained in lead safe practices” working in Brooklyn developments—developments in which NYCHA had determined that at least 12,000 apartments could contain lead paint.
101. Children with Environmental Intervention Blood-Lead Levels. Senior NYCHA managers also knew that NYCHA was required to report children with environmental intervention blood lead levels to HUD and that it was not doing so. Between 2010 and 2013, NYCHA received at least 54 violation notices from NYC DOH informing NYCHA that children living in NYCHA apartments with deteriorated lead paint tested positive for high concentrations of lead. Though there are technical differences between NYC DOH’s and HUD’s thresholds for reportable lead levels, NYCHA took no steps to determine which of these children met HUD’s reporting thresholds. NYCHA failed to report any to HUD. Further, when HUD asked NYCHA in 2013 to provide the number of children with environmental intervention blood lead levels living in NYCHA housing, NYCHA failed to provide any information. In fact, NYCHA did not send HUD any information about children with elevated blood lead levels until after this Office’s investigation began. In addition, a NYCHA senior Operations manager admitted in a 2017 interview that he knew that, under the regulations, NYCHA was required to conduct a new risk assessment reevaluation in developments thought to be lead-free if a child with an environmental intervention blood lead level was exposed to a lead paint hazard in that development. NYCHA should have conducted risk assessment reevaluations in at least three NYCHA developments where children with environmental intervention blood lead levels lived. To date, it has failed to do so.
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102. Disclosure of Lead. Senior NYCHA managers also knew that NYCHA was deficient in complying with the Lead Disclosure Rule. When HUD asked to visit a development to check its “lead disclosure documents” in 2010, NYCHA Operations staff decided they should “pick a small development . . . managed well.” They picked the Straus Houses, and a senior Operations manager asked that someone “reach out to [the development’s] Manager and have a staff member go over the documents they should have on hand and in the residents folders,” emphasizing that “everything as far as lead must be on point.” But it was not. Another senior Operations manager reported that “none of the resident folders had [lead paint] acknowledgement forms or any other [lead paint] info within.” Similarly, in 2013, in preparation for another HUD inspection, a NYCHA manager requested that NYCHA’s Lead Paint Program Unit provide the developments with copies of the latest risk assessment reevaluation report, even though the developments should have had such documents on site and made them available for review in connection with disclosures. As a senior Operations manager explained, “[u]nfortunately, nobody ever keeps [the risk assessment reevaluation reports] like [they are] supposed to.”
2. NYCHA Repeatedly Made False Statements About Lead Paint 103. With full knowledge of NYCHA’s violations of HUD’s lead paint safety regulations, NYCHA has repeatedly made false statements to HUD and the public. 104. Every year, since at least 2010 and through 2016, NYCHA has submitted certifications to HUD falsely representing that NYCHA “will comply with [federal lead paint safety regulations].” 105. In 2015 and 2016, NYCHA found itself under intense scrutiny, after public reports of a young girl living in NYCHA housing with dangerously high levels of lead in her blood stream, the crisis in Flint, Michigan, regarding the presence of lead in the water, and this Office’s
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investigation of lead paint issues at NYCHA. Instead of putting systems in place to protect residents from lead exposure, NYCHA opted to falsely reassure HUD and the public.
106. For example, on April 17, 2015, in response to news articles about a lead-poisoned toddler living in NYCHA housing, NYCHA managers drafted a letter on behalf of NYCHA’s Chair to elected officials in New York City, falsely stating that “NYCHA pays close attention to lead paint risks” and that NYCHA “complies with Federal, State, and City regulations concerning lead.” This same letter was sent to resident leaders in NYCHA developments. At that time, at least two of the senior Operations managers involved in drafting the letter to elected officials and residents knew that NYCHA had long failed to conduct mandatory visual assessments of apartments presumed to contain lead paint.
107. The following month, NYCHA and NYC DOH held meetings with residents and NYCHA employees. The NYCHA presentation, drafted by high-level NYCHA officials, told residents and NYCHA employees that the “vast majority of NYCHA developments” do not have lead paint and that NYCHA takes “extra safeguards” in the developments that do. At that time, at least two senior NYCHA managers involved in drafting the presentation knew that more than half of NYCHA developments had been confirmed to have at least some lead paint on the premises, and roughly thirty percent of those NYCHA developments had been confirmed to have lead paint in apartments. The senior NYCHA managers also knew that NYCHA had failed to perform annual visual assessments and risk assessment reevaluations for years.
108. On August 31, 2015, NYCHA submitted to HUD, via New York City’s 2014 Consolidated Plan, a statement drafted by senior NYCHA officials that “NYCHA complies with Federal, State, and City regulations concerning lead and executes HUD directives regarding leadbased paint (LBP).” At that time, the senior NYCHA officials who drafted NYCHA’s statement
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of compliance knew not only about the lack of visual assessments and risk assessment reevaluations, but also that NYCHA was assigning untrained maintenance workers to disturb lead paint surfaces without telling them that there was lead paint or that they were required to use leadsafe work practices.
109. On October 12, 2015, NYCHA submitted to HUD its certification falsely representing that NYCHA “will comply with [federal lead paint regulations]” and currently is in compliance with applicable regulations. At that time, senior NYCHA officials knew not only about the noncompliance with respect to visual assessments and risk assessment reevaluations and lead-safe work practice requirements, but also that NYCHA often failed to provide residents with required disclosures regarding the existence of lead in their developments.
110. In a February 2016 email, NYCHA management responded to lead-related questions posed by HUD, again falsely assuring HUD that NYCHA “complies with Federal, State, and City regulations concerning lead paint hazards and executes HUD directives regarding lead-based paint.”
111. On March 28, 2016, after this Office’s investigation of lead paint issues at NYCHA became public, the NYCHA Chair testified before the New York City Council that NYCHA regularly conducted inspections of apartments with lead paint as required by New York City law. At the time of these statements, at least two NYCHA executives knew that, for many years, NYCHA had failed to conduct visual assessments (as required by HUD or by local law) or risk assessment reevaluations as required by HUD’s regulations.
112. On June 12, 2016, NYCHA and NYC DOH issued a joint press release titled “Lead-Based Paint and New York City Housing Authority (NYCHA): Facts.” This press release falsely stated that NYCHA has done “rigorous work” to “remediate any lead-based paint
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whenever [NYCHA] find[s] it.” It further stated that NYCHA “performs annual inspections of units for lead-based paint,” without disclosing that those inspections had just started the month before. In addition to these false and misleading statements, NYC DOH added its own “fact”: “Prevention and abatement efforts at NYCHA properties are an unqualified success.” At that time, senior NYCHA officials knew that NYCHA had failed to conduct mandatory visual assessments under federal and local law. In addition, senior NYCHA officials knew that NYCHA’s prevention efforts were far from “success[ful].”
113. In September 2016, NYCHA made a presentation to senior HUD management addressing lead paint at NYCHA. During that presentation, NYCHA finally admitted that it had failed to conduct annual visual assessments of NYCHA apartments with lead paint. However, NYCHA failed to disclose its other violations of HUD’s lead paint safety regulations. Instead, NYCHA continued minimizing the problems, falsely telling HUD that “[o]nly two developments (less than .0001% of sample) have lead-based paint on the walls,” when NYCHA’s own data reveals that more than 25 developments have tested positive for lead paint on walls.
114. On October 12, 2016, NYCHA again falsely certified to HUD that NYCHA “will comply with [federal lead paint safety regulations].”
115. And on December 16, 2016, NYCHA again submitted a statement to HUD in a New York City Consolidated Plan that falsely stated that “NYCHA complies with Federal, State, and City regulations concerning lead and executes HUD directives regarding lead-based paint (LBP).”
116. All of these statements by NYCHA were false: Lead paint exists at hundreds of NYCHA developments; NYCHA does not have the procedures in place to monitor lead paint hazards; NYCHA has failed to disclose important information to HUD, its residents, and the
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public about lead paint hazards at the developments; and NYCHA was violating core provisions of federal lead paint regulations even as it was making the false statements.
117. NYCHA’s repeated false statements about its lead compliance allowed NYCHA to avoid HUD scrutiny and remain noncompliant for years.
NYCHA COVERS UP ITS FAILURE TO PROVIDE THE DECENT, SAFE, AND SANITARY HOUSING REQUIRED BY LAW 118. NYCHA’s failure to comply with lead paint safety regulations is just one element of the environmental health crisis at NYCHA. More broadly, NYCHA fails to provide “decent, safe, and sanitary” housing because of systemic lead-paint violations, pervasive mold, widespread lack of heat in winter, infestations of rats, mice, and roaches, and chronic elevator outages in high-rise buildings. And NYCHA has concealed these conditions from HUD, by undermining HUD inspections and thereby rendering the inspection results unreliable. A. Decent, Safe, and Sanitary Regulations 119. Public housing’s central purpose is to provide decent, safe, and sanitary housing to lower-income families. Therefore, Congress directed HUD, in the U.S. Housing Act, as amended, to promulgate “housing quality standards . . . that ensure that public housing dwelling units are safe and habitable.” 42 U.S.C. § 1437d(f)(2). HUD in turn imposed a core regulatory requirement that all public housing “be decent, safe, sanitary, and in good repair.” 24 C.F.R. § 5.703 (the “decent, safe, and sanitary” regulations); see also 24 C.F.R. Part 902. This requirement is also reflected in the Annual Contributions Contract that governs certain HUD payments to NYCHA. 120. HUD regulations not only set an overarching mandate for “decent, safe, and sanitary” housing, but also impose specific requirements designed to protect the public health. Among other things, housing agencies must:
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• Comply with HUD’s lead paint safety regulations. 24 C.F.R. § 5.703(f). • Ensure that “dwelling units and common areas . . . have proper ventilation and be free
of mold.” 24 C.F.R. § 5.703(f). • Prevent “infestation by rats, mice, or other vermin.” 24 C.F.R. § 5.703(f). • Maintain heating and elevator systems that are “functionally adequate, operable, and
in good repair.” 24 C.F.R. § 5.703(c). 121. HUD conducts annual Public Housing Assessment System (“PHAS”) inspections to assess physical conditions (and certain other matters) at housing agencies. See generally 24 C.F.R. Part 902. At large housing agencies, HUD inspects a randomly generated subset of apartments at each development, plus building common areas, and scores the housing agency based on its findings. Excessive deficiencies can lead to adverse consequences ranging from more frequent inspections to the appointment of a receiver to take over the housing agency. 24 C.F.R. §§ 902.13, 902.73, 902.75, 902.83. B. NYCHA Deceives HUD’s Inspection Program 122. NYCHA is keenly aware that HUD is the principal agency funding NYCHA and may impose limitations on HUD funding if NYCHA fails to comply with applicable regulations. Moreover, HUD has the authority to appoint a receiver to replace NYCHA management. NYCHA’s 2015 “NextGeneration” plan—a reform plan that nonetheless has failed to address core deficiencies in operations and environmental health—expressly acknowledges the potential for a federal receivership. 123. In order to ward off consequences for failing to maintain proper living conditions, NYCHA management has repeatedly misled both HUD and the public regarding the true living conditions at NYCHA.
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124. A key way that NYCHA has deflected HUD scrutiny of its living conditions, since before 2010, has been to hide conditions from HUD inspectors.
1. HUD’s Public Housing Inspections 125. Every year, HUD assesses living conditions at NYCHA through PHAS inspections. HUD uses PHAS inspections as an important means to evaluate NYCHA’s performance. See generally 24 C.F.R. Part 902. 126. PHAS inspections evaluate four components: NYCHA’s physical conditions, financial condition, management, and capital funding. The result of a PHAS inspection is a “PHAS score” of up to 100 points. 24 C.F.R. § 902.9. 127. A housing agency’s overall “PHAS score” is based on its separate scores for the four components of the PHAS inspection. A housing agency’s overall PHAS score, taken in combination with the housing agency’s scores on the four separate components of the PHAS inspection, determines whether the housing agency will be designated as a “high performer,” a “standard performer,” a “substandard performer,” or a “troubled performer.” 24 C.F.R. §§ 902.9, 902.11. 128. HUD gives the most weight to the physical conditions component of PHAS inspections. 24 C.F.R. § 902.9. “The objective of the physical condition [assessment] is to determine whether a [public housing agency] is meeting the standard of decent, safe, sanitary housing in good repair.” 24 C.F.R. § 902.20(a). To achieve this, HUD inspects common areas and a sample of apartments at each NYCHA development or group of developments, generally every year. 24 C.F.R. § 902.22. 129. A passing score on the physical conditions component is 60 percent, although higher scores can result in additional, positive consequences for NYCHA. 24 C.F.R. §§ 902.11,
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902.25. For example, low scores can result in HUD-imposed corrective action plans, whereas high scores can lead to relief from certain reporting requirements. 24 C.F.R. § 902.11.
130. Each development has its own incentive to score as many points as possible. If a property receives a physical condition score of less than 80 points, HUD will inspect the property again the following year. But if a property scores between 80 and 90 points, HUD will inspect the property every two years. And if a property scores 90 points or more, the property will skip two years of HUD inspections in a row. 24 C.F.R. § 902.13.
131. NYCHA staff know that if they can find ways to earn extra PHAS points, then they can ward off further HUD scrutiny. In one case, after a development passed its PHAS inspection, a Deputy Director emailed staff to congratulate them on a passing score. Nonetheless, he instructed that they should look for any and all ways that the development might appeal to HUD to get back any points that were deducted during the inspection. He added with emphasis: “[W]e only need two points back to get a year off [from inspection].” Any extra points are also important to NYCHA as a whole, even if those points do not make the difference for the individual development, because each property’s score will affect NYCHA’s score overall, and may therefore affect whether NYCHA is classified as a high, standard, substandard, or troubled performer. 24 C.F.R. § 902.25.
132. But HUD can only rely on the physical condition assessment process if housing agencies participate in good faith. Thus, although NYCHA has been scored a “standard” performer since 2010, its score is not reliable because NYCHA has systematically deceived HUD’s inspectors by concealing the true condition of NYCHA housing during those years.
2. NYCHA’s Pre-PHAS “Magic” 133. Just before a PHAS inspection, NYCHA management and staff focus on maximizing PHAS scores. Management circulates dossiers on individual inspectors to enable
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staff to target the conditions for which each inspector is known to deduct points. NYCHA diverts “quality assurance” staff—typically responsible for verifying work after it is performed by NYCHA maintenance workers—to scout for problems to be corrected at the to-be-inspected developments. And it shifts staff and resources from developments not scheduled for inspection to perform emergency efforts to make the inspected developments “PHAS ready.”
134. In its PHAS preparation, NYCHA goes to great lengths to mask problems that otherwise exist year-round. The contrast is not lost on NYCHA residents. In December 2015, one NYCHA residents association complained to NYCHA after being told that it would take four months to repair a broken door that the residents believed to be a fire hazard:
Let’s treat it like Phas and get a magic carpenter up there to change the door like we’ve been seeing since last week to fake for the inspector. These actions show that management doesn’t care about their residents unless it is an inspection, a special visit from downtown or a tragedy. 135. Or, as a resident in Pomonok Houses put it in 2015, in an email forwarded to NYCHA’s senior management: “PHAS came and . . . just like children Pomonok hid[] all the trash under the bed.” 3. NYCHA Hides Housing Conditions from Inspectors 136. NYCHA’s PHAS preparations include hiding conditions from inspectors. 137. Some of the starkest misconduct occurs around leaks, a major PHAS point deduction as well as a cause of mold, pests, and other conditions. 138. For example, former NYCHA Directors in Brooklyn and the Bronx have confirmed that development staff would shut off a building’s water supply just before the PHAS inspector arrived to inspect common areas in order to temporarily stop ongoing leaks that would otherwise be visible. Once the PHAS inspector left the building, the water supply would be restored. Deputy Directors at NYCHA knew of this practice.
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139. NYCHA uses other techniques to hide leaks as well. When a standpipe began leaking two days before a 2013 PHAS inspection at the Frederick Douglass Houses, a NYCHA senior manager, copying a NYCHA administrator, pressed others at NYCHA on whether there was a “clamp or something we can put on this to cover up the leak.” Because the shape of the pipe would not permit a clamp, the NYCHA administrator suggested attaching a piece of insulation on the morning of the inspection to absorb the leaking water. They ultimately decided to cover the pipe with material from an oil spill kit for the inspection.
140. According to one former maintenance worker, the management at NYCHA developments would instruct workers to put tape over holes in pipes before the PHAS inspections, to prevent HUD from seeing the holes.
141. During a 2013 PHAS inspection at a development in Brooklyn, a boiler room leak led to a 10-point deduction and a failing score. A NYCHA manager in Brooklyn explained that the point deduction was just “[b]ad timing,” because there was not much his staff “could have done to stop or hide it.” A senior Operations manager then forwarded this email to an Operations executive explaining: “FYI - Big hit that literally happened as the inspector was walking in. Must have cleaned what was holding it together off.”
142. What is true of leaks is also true of ventilation: NYCHA has made efforts to hide its ventilation problems from HUD inspectors, leading to better PHAS scores and depriving HUD of important knowledge relevant to mold and other living conditions.
143. In 2014, when HUD was scheduled to inspect the Bronxchester development, managers focused on the fact that two roof fans were out of order. To cover this up for the inspection, a senior manager proposed—in an email copied to a senior executive—that NYCHA “swap out 2 fans from [another development] for this Inspection.”
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144. A former NYCHA Deputy Director explained a trick he personally used to make a broken-down roof fan appear to be functioning for a PHAS inspection: He put a refrigerator motor inside the inoperative roof fan. In this way, he fooled the PHAS inspector into thinking that the roof fan had a functioning motor.
145. Beyond leaks and ventilation, NYCHA often covers up holes in walls and ceilings, which (in addition to being point deductions) are hiding places for cockroaches and other pests in apartments. According to a former manager, it was a common practice to stuff holes in the walls with newspaper and cork and then paint over the holes, to conceal them from PHAS inspectors. A former NYCHA manager from Manhattan directed maintenance workers, in advance of PHAS inspections, to use a foam spray to disguise holes in the wall that needed plastering.
146. NYCHA property managers often direct maintenance workers to literally cover up broken doors in common areas for PHAS inspections, according to one former property manager. That is, instead of fixing the door, the maintenance workers will remove it, cover the area with plywood, and paint over it, so that the inspector will not know that there is a broken door at all.
147. In the same vein, a former NYCHA caretaker has explained how her superintendent would instruct staff before PHAS inspections to lock the doors of basement rooms with dangerous or unsanitary conditions and post a sign reading “Danger: Do Not Enter,” to keep the inspectors out. After the inspections were completed, the signs would be removed and staff would continue to use those rooms in carrying out their daily responsibilities. Another former maintenance worker reported that NYCHA staff would build false walls out of a single layer of plywood to conceal dilapidated rooms from PHAS inspectors.
148. Certain NYCHA staff openly discussed hiding conditions from PHAS inspectors. In 2013, a NYCHA superintendent emailed a group of NYCHA staff to say, “We’re hiding four
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big pails of oil behind your containers for our PHAS inspection today. We’ll get them after it’s over.” The superintendent then forwarded his email to a NYCHA senior manager, to request assistance in eventually disposing of the oil.
4. NYCHA Trains Its Staff to Undermine the PHAS Program 149. The intentional nature of NYCHA’s misconduct with respect to the PHAS inspection program is illustrated by the fact that NYCHA actually trained its staff on how to deceive HUD inspectors. NYCHA’s internal guidelines on PHAS inspections expressly encourage staff to use subterfuge of this kind. For a decade, NYCHA provided its staff with a list of “Quick Fix Tips” that served as a how-to manual for misleading inspectors. 150. Many of NYCHA’s “Quick Fix Tips” revolve around using paint and plywood (or a 2x4 or cardboard) to cover over the problematic condition during the inspection. Thus, the Quick Fix Tips include the following (all emphases added):
• Ceiling Tiles: Tiles, including those in community facilities, that are damaged or stained need to be replaced or painted. Painted cardboard can be used instead.
• Drain Covers: Ensure all drains and cleanout covers are in place. Plywood cut and painted can be a good substitute. Drill holes for drainage.
• Fencing: Missing fence sections are not deficiencies if there are no means to attach additional sections. Remove brackets and any sign of attachment. A piece of 2x4 can be attached to the end and painted black if necessary.
• Mailboxes: If any doors are missing, replace. If parts are an issue, temporarily cover them up for the day.
. • Improperly Stored Flammables: Flammable aerosol cans should be placed out of sight. On the day of inspection, remove all gasoline powered equipment to an outside area.
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151. These “Quick Fix” materials were standard NYCHA guidance to staff for over a decade. These techniques were included in annual trainings instructing NYCHA staff how to prepare for PHAS inspections. Borough-level management circulated a link to these tips widely to development leadership in “Round Robin” emails. Senior Operations managers were often copied on emails circulating information on the Quick Fix Tips. Just before this investigation began, in 2015, a NYCHA borough director emailed the Quick Fix Tips to a senior Opreations executive and notified him that these tips would be sent to developments to “remind staff on how to correct/abate deficiencies.”
152. Indeed, NYCHA’s “Quick Fix Tips” were long maintained on NYCHA’s intranet as reference material for staff. It was only removed in 2017, after this Office questioned senior NYCHA executives about the document in front of NYCHA’s attorneys.
5. NYCHA Front-Runs Inspectors 153. In addition to concealing defects from HUD, NYCHA undermines the integrity of PHAS inspections by improperly sending personnel ahead of inspectors to repair deficiencies during inspections. 154. For example, NYCHA sends teams of elevator mechanics to stay one step ahead of PHAS inspectors. In a September 2013 email, an elevator supervisor confirmed to NYCHA’s elevator chief that a “team [of elevator mechanics] ha[d] been instructed to stay one building ahead of the PHAS inspector, during the inspections.” The next year, a senior manager emailed a dozen NYCHA employees, including a senior Operations executive, that “the site team [of elevator mechanics] or assigned staff will lead the PHAS inspection team by 2 buildings to ensure no[-]service conditions are abated,” to ensure no points were lost for elevators. He went further, advising that “Mandated DOB [Department of Building] inspections will be rescheduled as not to impact scoring.” In 2015, two NYCHA managers, copying two other NYCHA executives,
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reiterated that a “team of elevator mechanics should be on site for any unforeseen elevator outages” during PHAS inspections.
155. Maintenance staff take the same approach. One maintenance worker employed by NYCHA through 2016 explained that a maintenance worker would be given a single electric panel cover and tasked with running ahead of the inspector to fit that single cover on each uncovered electrical box before the inspector arrived.
156. More broadly, NYCHA creates a culture in which staff feel compelled to obtain high PHAS scores, no matter the cost. A senior NYCHA executive would monitor each development’s PHAS scores and how scores change over time. Managers and staff know that they are expected to address or cover up problems before the PHAS inspector arrives. As one Borough Director instructed her borough’s property managers and supervisors, in an email attaching the Quick Fix Tips: “[Y]ou must take ownership in this process and understand that you are the development supervisors and are responsible for the outcome of these inspections.” C. NYCHA Fails to Provide Decent, Safe, and Sanitary Housing
157. By subverting the PHAS inspection process, NYCHA has concealed from HUD its failure to meet the decent, safe, and sanitary requirement of 24 C.F.R. § 5.703 and other related requirements. E.g., Annual Contribution Contract § 5 (requiring NYCHA to develop and operating housing “in compliance with . . . all applicable . . . regulations”).
158. At NYCHA, lead paint safety rules are often violated. Leaks are common and peeling paint frequently goes unaddressed. NYCHA’s own maintenance procedures often are not followed. Many categories of repairs that should be quickly addressed instead take weeks or months.
159. Serious public health problems abound, above and beyond those relating to lead paint: Recurring mold growth infects thousands of apartments because of leaks and poor
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ventilation, a particular health risk for residents with asthma. NYCHA often fails to provide sufficient heat in winter, leading to frigid indoor temperatures that threaten residents’ health. Pest infestations are common, fostered by NYCHA’s failure to fix leaks and provide basic sanitation, again affecting tenants with asthma. Elevators frequently fail to work, stranding elderly and disabled tenants.
160. NYCHA’s failures have lead residents to unsafe self-help: Residents scrape large mold patches from their bathroom ceilings; use potentially dangerous pesticides; and heat apartments with ovens or stoves. They climb unlit, hazardous stairwells when the elevators do not work.
161. And NYCHA’s problems with lead, mold, heat, elevators, and pests are not the whole story. In recent years, the New York City Department of Investigation has found that NYCHA fails to properly conduct key safety checks of items like smoke and carbon monoxide detectors in its apartments, and the New York City Comptroller has found that the majority of NYCHA’s playgrounds have “substandard and visibly hazardous conditions.” A March 2018 report by the New York State Department of Health found that 83% of inspected NYCHA units contained a condition that could pose a health hazard to tenants. All told, NYCHA does not provide its residents with housing that is decent, safe, and sanitary.
1. NYCHA Fails to Comply with Lead Paint Requirements 162. As described above, NYCHA has systematically failed to comply with HUD’s lead paint safety rules, notwithstanding the “decent, safe, and sanitary” regulation requiring that “housing must comply with all requirements related to the evaluation and reduction of lead-based paint hazards.” 24 C.F.R. § 5.703(f).
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2. NYCHA Has Widespread, Recurring Mold 163. Mold often grows unchecked at NYCHA, notwithstanding HUD’s requirement that public housing “be free of mold.” 24 C.F.R. § 5.703(f). 164. Mold at NYCHA is widespread. From 2013 to 2016, NYCHA residents made between 18,000 and 28,000 complaints about mold growth every year, and that number has been generally increasing. Nearly 28,000 mold complaints were made in 2016 alone. And the mold growth in NYCHA units is substantial, according to NYCHA’s own data. Of the mold complaints between 2014 and 2016 for which size data is available, 60% involve mold growth covering 10 or more square feet, as confirmed by NYCHA’s maintenance staff. Nearly 300 mold complaints have involved mold growth covering more than 100 square feet, again, according to NYCHA employees. 165. Mold threatens residents’ health. When mold grows in a home, it can release toxins and allergens linked to significant respiratory problems, including asthma attacks. Asthma is also a significant public health problem for adults in NYCHA housing. According to data from NYC DOH, between 2012 and 2014, the rate of asthma hospitalizations for NYCHA residents aged 20 and above was four times higher than for the rest of New York City. 166. Mold grows where there is sustained moisture, which is endemic at NYCHA as a result of leaks, flooding, and poor ventilation. From 2013 to 2016, NYCHA residents complained about flooding or leaks from ceilings, walls, and pipes between 117,000 and 146,000 times each year, and again, those numbers have been increasing. Ventilation at NYCHA is often broken, shut off, or too weak to be effective, leaving interior rooms unable to vent moisture. According to NYCHA’s own records, where such data is available, roughly 3 out of every 5 mold complaints are caused by leaks and poor building ventilation.
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167. One example of how mold and leaks affect residents is the case of a tenant from the Sheepshead Bay Houses. This resident, who has three children—two of whom have been diagnosed with “persistent asthma”—had complained to NYCHA about mold and leaks numerous times between June 2013 and February 2015. Yet NYCHA had denied the resident’s request that her family be transferred to a new apartment as a reasonable accommodation based on her children’s asthma. A NYCHA staff member visited this resident’s apartment in February 2015 and confirmed the presence of “mold and mildew throughout her apartment.”
168. In another instance, a family in the Long Island Baptist Houses experienced repeated leaks and mold, with over a dozen mold growths from 2013 to 2017. The family repeatedly complained to NYCHA, which recorded numerous work orders with descriptions like “flooding” and “constant leaking,” including one from November 2016 for “roof leaking above.” But the problem was not addressed, and in 2017, the ceiling in the bathroom collapsed, the result of years of water damage.
169. No one should have to live with mold like what NYCHA maintenance workers recorded in this apartment:
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171. Worse, NYCHA has often proven unable to eliminate mold in response to residents’ complaints. Although NYCHA eventually cleans the mold from the walls, the mold grows back in many cases because NYCHA does not successfully address its root causes. More than 30% of the time, mold growth returns after NYCHA claims to have addressed it.
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172. Because of NYCHA’s failure to adequately address persistent mold in NYCHA apartments, NYCHA residents are forced to try to fix even serious mold problems themselves. For example, one resident in the Baruch Houses reports that, for years, he has cleaned large patches of mold off his grandmother’s bathroom ceiling every six months, but the mold always reappears.
173. NYCHA’s failures persist despite a 2014 settlement of a federal class action lawsuit brought by NYCHA residents with asthma, Baez v. NYCHA, No. 13 Civ. 8916 (WHP) (S.D.N.Y.). As a term of this settlement, NYCHA committed to taking several steps intended to remediate the mold problem in NYCHA housing, including a promise that NYCHA would remediate mold growth within specified timeframes. NYCHA touted its new mold efforts and claimed to be complying with the new mandated timeframes. But in fact, NYCHA was just using misleading metrics to make it appear that NYCHA was in compliance. Instead of reporting how long it took for NYCHA to remediate a mold problem, NYCHA broke up its remediation efforts into multiple subtasks, and then reported how long it took NYCHA, on average, to complete each subtask. Since each mold remediation effort could require several subtasks, NYCHA’s reporting made it appear that NYCHA was fixing residents’ mold problems far quicker than it actually was.
174. NYCHA failed to “compl[y] with the Consent Decree from the day it was entered,” as the federal judge hearing the case subsequently found. As he put it, “the attitude of NYCHA officials” toward its obligations under the Consent Decree “appear[ed] to be one of indifference.”
175. This attitude of indifference is apparent in NYCHA’s handling of mold. Residents report that NYCHA often closes mold work orders without ever addressing the mold problem. According to former NYCHA maintenance workers, NYCHA regularly fails to repair broken roof
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ventilation fans or turns off roof ventilation fans to save money. And former maintenance workers report that NYCHA staff fail to address leak complaints where the leak is not apparent because, for example, it is no longer raining.
176. NYCHA’s top management knows that, despite the Baez consent decree, NYCHA is still failing to successfully control its mold and leak problems. NYCHA concedes that mold returns in more than 30% of the apartments where NYCHA has responded to complaints. In late 2015, NYCHA learned that a resident’s bathroom ceiling had collapsed after months of persistent leaks. A representative of City Hall asked by email, “How is this kind of thing still happening?” NYCHA’s Chair agreed: “Ridiculous.”
3. NYCHA Fails to Provide Necessary Heat in Winter 177. Apartment heating is essential in cold New York winters. 178. HUD’s “decent, safe, and sanitary” regulations require a public housing agency to provide a heating system that is “functionally adequate, operable, and in good repair,” 24 C.F.R. § 5.703(c), (d)(1), and to comply with city building and maintenance codes related to heat, 24 C.F.R. § 5.703(g). New York City long mandated that during winter, when outside temperatures fall below 55º during the day or 40º at night, NYCHA must maintain an indoor temperature of at least 68º during the day and 55º at night. N.Y.C. Admin. Code § 27-2029(a). Since October 2017, the standard has become even stricter overnight, requiring an indoor temperature of 62º at all times, regardless of outdoor temperatures. N.Y.C. Admin. Code § 27-2029(a). 179. NYCHA frequently fails to meet these standards. At most NYCHA developments, the only record of apartment temperatures is created when NYCHA staff visit the apartment: They are required to manually record temperatures for each apartment they visit. Although they mostly fail to do this, these employees have nonetheless recorded tens of thousands of heating violations between Winter 2011-2012 and Winter 2016-2017. In fact, for nearly every day when
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outside temperatures fell below 55º during the day, NYCHA employees recorded apartment temperatures below—and often five or ten degrees below—the legal minimum.
180. At a handful of developments, NYCHA has collected more precise data, which confirms these violations. At these developments, NYCHA has installed devices that electronically record temperatures every 15 minutes. The resulting record is clear: Of the approximately 2,800 apartments for which NYCHA provided comprehensive data for the winter of 2015-2016, at least 75% of apartments fell below legal limits at some point in the winter, and on average the apartments with violations fell below the legal limit on at least 21 separate days.
181. Residents called in roughly 825,000 complaints of insufficient heat between 2011 and 2016. In Winter 2015-2016 alone, nearly 43,000 residents called in more than 155,000 complaints of insufficient heat, with 25,000 residents having to call in a lack of heat at least twice.
182. During the frigid weather between December 29, 2017, and January 8, 2018, thirty-two NYCHA developments had recurring heat outages. More than 20,000 work orders for heating repair were generated by NYCHA during that ten-day period, with approximately one in four still unresolved as of January 8. Many thousands of residents were impacted by NYCHA’s inability to maintain this basic service when it was needed most.
183. More than 323,000 residents—80% of the entire NYCHA population—suffered heat outages between October 1, 2017, and January 22, 2018, alone. According to NYCHA, the average duration of these outages was 48 hours, a significant increase over the prior year.
184. Lack of heat drives residents to unsafe self-help, including relying on ovens or stoves for heat. For example, residents at 51 Manhattan Ave reported to NYCHA through their attorney that they were “sleeping with their gas ovens on for heat.” Another resident, at the Marlboro Houses, reports that her heat regularly does not turn on, even when the outside
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temperature is freezing, and she routinely uses her stove to heat up her apartment. Yet another resident at the Patterson Houses reports that she has many times left her oven on or boiled water for steam to heat her apartment.
185. NYCHA’s heat problems persist despite a 2015 lawsuit by New York City’s Public Advocate challenging NYCHA’s heating policies. NYCHA settled the lawsuit in March 2016, offering some accommodations to the handful of residents who joined the Public Advocate in the suit, and otherwise falsely declaring that NYCHA’s “heating policy at all times has complied with applicable law” and that “its procedures and practices for implementing the policy maintain or exceed the minimum temperatures the law requires.” As described above, NYCHA’s own data show that these statements are false.
186. Given this data, and residents’ hundreds of thousands of complaints, NYCHA’s top management is aware of NYCHA’s persistent heating failures. Moreover, NYCHA’s heating department is beset by management and personnel problems. In February 2017, NYCHA reported to this office that its Heating Service and Operation Department had to send disciplinary memos to more than 10% of its heating technicians over the preceding year, and during the same period it had demoted two heating managers and counseled another seven.
4. NYCHA Fails to Provide Functional and Adequate Elevators 187. In NYCHA’s tall buildings, functioning elevators are essential; HUD’s decent, safe and sanitary regulation requires them to be “functionally adequate, operable, and in good repair.” 24 C.F.R. § 5.703(c). But elevators at NYCHA are out of service far too often and far too long.
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188. Based on available outage data, NYCHA experienced an average of 94 outages per elevator between 2011 and 2016.8 More than one in eight of these outages lasted for more than 10 hours.
189. In 2016, NYCHA elevators experienced an average of more than 13 outages per elevator. Almost 40% of NYCHA residents live in buildings where an elevator was out of service more than 20 times in 2016. The worst 20% of NYCHA elevators had 32 outages on average that year. And the outage times are getting worse: Over 20% of outages in 2016 lasted for more than 10 hours.
190. Often, these outages take out of service the only elevator in the building, or all elevators in a building with multiple elevators. In 2016, nearly 70% of NYCHA buildings with at least one elevator suffered through an outage during which all of the building’s elevators were out.
191. Not only are NYCHA’s elevators often broken, but these breakdowns frequently occur when residents are in the elevators. NYCHA work order data reflect that, in 2016, approximately 1,900 elevator outages involved a passenger who was stuck in the elevator during the outage. It took NYCHA an average of two hours to resolve these situations, suggesting that many NYCHA passengers are stuck in elevators for significant periods of time.
192. NYCHA management is aware of the disruption to residents’ lives caused by the failure of its elevators. For example, in 2016, a former resident of Holmes Towers whose family still resides there reached out to senior NYCHA management about “severe elevator issues” in that development. The former resident reported that NYCHA had been “updating” its elevators in
8 Because NYCHA’s workorder data does not appear to clearly label all preventive maintenance for its elevators, and thus does not reflect all outages due to preventive maintenance, it is likely that the number of outages is even higher.
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the building for several months, and the one elevator in service regularly broke down, forcing residents to choose between waiting “for hours in a lobby with no fan or air conditioning” or climbing the stairs.
193. NYCHA’s elevator failures are bad enough for any resident, but they are an extreme hardship for disabled and elderly residents. For example, the president of a residents’ association emailed NYCHA Operations executives and managers in 2013 reporting that a wheelchair-using senior resident at the Melrose Houses “was forced to sleep downstairs in her wheelchair [and] couldn’t get home till Tuesday morning at 5:35 a.m.” This situation resulted from “a double header”—NYCHA’s terminology for having all elevators in a multiple-elevator building down at once.
194. In 2014, the residents’ association president reported the same problem having hit his own family: Copying senior NYCHA management, he wrote: “I think this is horrible that my family had to carry my little brother up 15 floors in a wheelchair” because of another double header.
195. In 2015, a resident at the Carver Houses describes providing a fellow resident with water and a cool rag as they climbed the stairs to the fifteenth floor. Three days later, the elevators were out of service again, leaving three elderly and one disabled resident stranded in the lobby. In an email that reached a senior NYCHA Operations manager, the resident pleads, “[i]s there ever going to be any relief to this situation here once and for all”? When the resident was finally informed that the elevators were restored, she wrote back that “some one higher up should see a bigger issue than just to send out repair men for what will become a TEMPORARY repair” and that “when shortcuts [are] taken [they] become dangerous to innocent people.” She pleaded
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that NYCHA investigate the cause of the outages “and solve it once and for all” to ensure the safety of herself and her family. This email, too, made its way to senior NYCHA management.
196. Even when NYCHA tries to upgrade its elevators, it subjects residents to prolonged service outages. For example, in 2017, the sole elevator in a building in the Betances development in the Bronx was taken out of service for a lengthy period of modernization. During that period, a fifth-floor resident of that building, who has difficulty using the stairs, had to call NYCHA each time she needed to leave or come back to her apartment so that NYCHA could provide her with a stair climber to help her up and down the stairs. As a result, this resident was only able to leave her apartment for pre-scheduled medical appointments.
197. NYCHA’s elevator maintenance problems have consequences. In December 2015, an 84-year-old resident of the Boston Road Plaza senior building was killed by a NYCHA elevator malfunction. Due to a breakdown of basic communication, NYCHA senior management did not even learn of the incident and investigate it until four days after it had occurred. A New York City Department of Investigation Report found that the death resulted from, among other things, poor maintenance and a failure to respond adequately to a resident’s report of the problem.
198. Despite significant public pressure on these issues, including a September 2012 settlement of a lawsuit (Brito v. NYCHA, No. 09 Civ. 1621) in which NYCHA agreed to institute a series of changes designed to improve elevator maintenance and performance, NYCHA has not corrected its failure to provide reliable and safe elevator service to its tenants.
5. NYCHA Fails to Address Rats, Mice, and Other Vermin 199. NYCHA has been unable to prevent “infestation by rats, mice, or other vermin.” 24 C.F.R. § 5.703(f). 200. According to NYCHA’s work order data, NYCHA residents reported more than 280,000 roach complaints from 2010-2016, more than 130,000 mouse complaints, and nearly
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15,000 rat complaints. An average of more than 19,000 apartments reported roach problems every year, and an average of nearly 10,000 reported mice. NYCHA residents in more than 1,900 buildings complained about rat problems in that same period.
201. The problem at NYCHA is significantly worse than normal pest problems present in other rental housing in New York City. According to the Census Department’s 2014 Housing and Vacancy Survey, residents in 14% of NYCHA units reported seeing 20 or more cockroaches a day. That is more than three times the percentage for all renter-occupied New York City housing. The same study showed that more than a quarter of NYCHA units reported a rodent infestation in their building.
202. The problem is getting worse. NYCHA’s internal data shows that resident roach complaints more than doubled between 2010 and 2016. NYCHA’s work order data also indicates that the number of apartments reporting mice and rat complaints have been increasing since 2013.
203. Pests harm residents’ health. Roach saliva and droppings exacerbate asthma; as described above, asthma is widespread at NYCHA. Mice and rats directly transmit diseases, and their droppings can contaminate food and water supplies.
204. NYCHA’s pest problems stem from poor sanitation and waste management (providing food for the pests); widespread leaks (providing water); and a failure to address holes in apartment walls (providing access and safe havens). NYC DOH has brought these issues to NYCHA’s attention. For example, in March 2016, NYC DOH notified NYCHA of “very active rat conditions” its inspector found at the Wise Towers in Manhattan. The NYC DOH inspector reported finding “rubbish,” “debris,” and “[m]any bags of garbage” contributing to a rat problem evidenced by “rat droppings” and at least 29 “rat burrows” on the property.
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205. Modern pest management methods, known as “Integrated Pest Management” (or “IPM”), take these causes into account. As a study co-authored by a NYCHA executive put it, IPM is “an approach that primarily involves improving sanitary and structural conditions to deny pests food, water, harborage, and movement.” These techniques have been shown to reduce pests, including in a major study performed in NYCHA buildings. Yet NYCHA fails to apply IPM in a meaningful way. Instead, trash is widespread; leaks are common; and holes in walls are frequently unaddressed.
206. In an April 2015 e-mail, a NYC DOH inspector explained the consequences of NYCHA’s failure to use pest management methods like IPM. On of one of his field visits to a NYCHA development, the inspector found “newly installed cabinets” that “quickly became a beautiful rat condo” because the installation “left gaps and harborage for roaches.” As the inspector noted, the installation of the cabinets “was not preceded by a pest management visit” to address the roach infestation in the apartment, therefore “[t]he existing roach population had no trouble moving in.”
207. When extermination is required, NYCHA also often fails. According to one former NYCHA employee who worked in NYCHA’s extermination services group and ultimately ran that group, NYCHA’s exterminators work in an environment of “chaos”: At times, they lack the appropriate pesticides to do their work because NYCHA fails to pay its suppliers and adequately stock necessary supplies; they fail to follow a systematic and efficient procedure for scheduling extermination appointments; and they are asked by senior management to deviate from set policies and procedures.
208. For many developments, the presence of pests morphs into full-blown infestations. In 2016, the basement of the Patterson Houses was discovered to have a labyrinth of rat burrows
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and dozens of rats beneath it. Unfortunately, these issues are not confined to basements and public spaces. A 2012 work order described the residents of an apartment in the Randolph Houses as “overcome by rats.” Another work order from 2016 included a quote from a resident in the Marcy Houses: “Too many mice. They climb on my baby crib and I have an asthmatic child and it affects him.”
209. Moreover, around 2012, NYCHA abandoned routine extermination services. Once the routine exterminations stopped, only tenants who called to complain about pest issues were provided with extermination services; however, tenants were never informed that the routine exterminations had been stopped and that they needed to call and complain to get extermination services. Pest infestations “exploded” as a result. Despite the frequency of infestations, routine exterminations were not resumed until at least 2016.
210. Another former NYCHA exterminator, described a culture where exterminators were directed to “fake it.” This meant that exterminators would sometimes spray water instead of pesticides when the necessary pesticides were in short supply. Exterminators would also close out work orders as “tenant not home” without confirming that was the case when they were given too many orders in one day. These practices were known, sanctioned, and encouraged by the exterminator’s supervisor.
211. In the absence of reasonable pest management by NYCHA, residents are often forced to resort to pesticides and insecticides that they purchase on their own. For example, a 2016 work order from a resident in Marlboro Houses reflects that the resident was buying “poison” to address bedbugs and roaches and repeatedly sprayed the ventilation units himself. When residents are forced to purchase and use their own pesticides, there is a significant risk that
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these potentially dangerous chemicals will not be used properly or that illegal pesticides will be used.
212. The core of the problem lies with the failure of NYCHA’s management. For example, in 2015, the Manhattan Borough President accurately summarized the rat problem at a press conference, saying that NYCHA “has no idea how to handle rats.” In a subsequent email between NYC DOH and City Hall, the NYC DOH Commissioner explained that the Borough President “may be right.” She emphasized that NYCHA has “challenges in waste management,” and that “it is not easy to get [NYCHA’s] ‘rat reservoirs’ under control.”
213. Indeed, NYCHA senior management know that NYCHA residents live with pests as a part of their daily life, those officials and managers often fail to take action, except in response to public criticism. One apartment in particular caught the eye of senior NYCHA management after an inquiry by the Mayor’s office and a State Senator’s office due to a rodent infestation in the apartment. The resident had requested a transfer to another apartment, which was rejected by NYCHA. A few weeks later, during an apartment inspection, the resident’s son showed the inspector a video of a rat in the apartment’s bathtub, despite previous efforts at extermination. The issue was ultimately elevated to a senior NYCHA executive, among others, because of prior “significant media coverage.”
214. Similarly, in February 2016, a senior NYCHA executive was made aware by email of a resident who had been living with a water bug infestation for two years. The resident had “put in tickets just to have them route to another trade just to be told that they don’t plaster pipes.” The resident was reportedly forced to “discard furniture[,] food[,] and clothing because these water bugs are nesting in everything.” In response, the NYCHA executive forwarded the email to senior Operations executives, noting her concern that “Greg got the same email”—presumably
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Greg Smith, a New York Daily News reporter—before asking for an investigation into the complaint.
NYCHA MADE FALSE STATEMENTS TO HUD AND THE PUBLIC TO AVOID SCRUTINY OF MAINTENANCE WORK ORDER BACKLOGS
215. NYCHA also misled HUD and the public about its efforts to reduce its massive work order backlog.
216. From 2010 through 2012, NYCHA faced sharp public criticism for its failure to perform needed repairs in residents’ apartments. Newspapers published articles describing “[i]nterminable delays for repairs,” which had “become the rule for NYCHA’s 400,000 residents,” as the result of a “backlog of . . . repairs [that] is staggering.”9 One article recounted the story of a “gaping hole in [a] 7-year-old[’]s . . . bedroom wall,” which NYCHA created in May 2010 to address a leak but then left open while it attempted to schedule an appointment for a plasterer to close the hole. Because of NYCHA’s “three-year backlog,” the first available date for a plasterer was fifteen months later, in August 2011.10 In the meantime, the child’s mother “worrie[d] every night about the stench of mold coming from the hole . . . [and] the danger of rats getting in . . . .”11
9 Juan Gonzalez, Gonzalez: NYCHA’s new fix system is years behind, N.Y. DAILY NEWS, July 23, 2010; Langnee Barron & Jake Pearson, Tenants hammered by overdue city repairs, N.Y. DAILY NEWS, June 20, 2011; see also, e.g., Larry McShane, Letter to Mayor Bloomberg last year warned of NYCHA’s failures, N.Y. DAILY NEWS, Aug. 2, 2012; Editorial Board, Mike’s blind spot, N.Y. DAILY NEWS, Aug. 3, 2012; Greg B. Smith, Fix it? Sure, by 2014, N.Y. DAILY NEWS, Aug. 17, 2012; Greg B. Smith, Two reports expose NYCHA dysfunction, N.Y. DAILY NEWS, Aug. 17, 2012. 10 Juan Gonzalez, Gonzalez: NYCHA’s new fix system is years behind, N.Y. DAILY NEWS, July 23, 2010. 11 Id.
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217. NYCHA’s work order backlog—roughly 400,000 work orders on its books at the end of each year—was identified in the press as a cause of these living conditions. Reporting on NYCHA’s “staggering volume of open requests for repairs,” the press described “housing developments [that] are overrun by rodents,” “mold-riddled apartments” that caused NYCHA’s children to suffer asthma at “nearly three times [the rate of children] in private family houses,” and elevators that were inoperable “[e]very other day.”12
218. Public criticism intensified in the summer of 2012. On August 1, 2012, the cover of the New York Daily News read “SACK THEM ALL,” below photographs of NYCHA’s thenChair and three other board members.13 Politicians, including the New York City Council Speaker and a Congresswoman, joined the fray, calling for NYCHA to release a report it had commissioned that found a backlog of hundreds of thousands of work orders.14
219. HUD, too, began pressuring NYCHA, insisting that NYCHA come up with a plan to address these problems.
220. In the face of this public and regulatory pressure, NYCHA promised HUD and the public that it would make efficiency and productivity improvements to eliminate the backlog, and ultimately claimed to have done so. Instead, a significant portion of NYCHA’s backlog reduction involved simply moving needed work off the books—principally by unlawfully suspending all
12 Greg B. Smith, Two reports expose NYCHA dysfunction, N.Y. DAILY NEWS, Aug. 17, 2012. 13 Editorial Board, NYCHA’s entire board of John Rhea, Emily Youssouf, Margarita Lopez and Victor Gonzalez must go, N.Y. DAILY NEWS, Aug. 1, 2012; Larry McShane & Greg B. Smith, NYCHA board sitting on nearly $1B in fed cash, N.Y. DAILY NEWS, Aug. 1, 2012. (Cover image available at http://www.nydailynews.com/blogs/dailypolitics/bloomberg-hide-nycha-report-blogentry-1.1691861.) 14 Tina Moore & Greg B. Smith, Make $10 Million report on NYCHA public, Council Speaker Christine Quinn says, N.Y. DAILY NEWS, Aug. 14, 2012; Celeste Katz, Document Drop Plus: The NYCHA Report, The Daily News Investigation, And The Fallout, N.Y. DAILY NEWS, Aug. 16, 2012.
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annual apartment inspections for two years—and finding other ways to manipulate its work order numbers. A. NYCHA Indefinitely Suspended Annual Inspections to Avoid Generating New Work Orders
221. Annual apartment inspections, by design, generate new work orders for repairs that the inspectors identify as necessary. At NYCHA, approximately 170,000 work orders had been generated by annual inspections in 2011. As of August 2012, NYCHA was on pace to generate even more work orders through inspections in 2012.
222. To artificially reduce backlog numbers, in late August 2012 NYCHA executives indefinitely suspended all annual apartment inspections. NYCHA specifically intended the suspension of inspections to avoid the creation of large numbers of new work orders, as well as to free up personnel to work on backlog reduction projects. As a top NYCHA executive acknowledged when this suspension of inspections was disclosed to HUD in 2016, the reason for the suspension was “putting too much focus on work order numbers.”
223. This indefinite suspension of inspections was unlawful. The U.S. Housing Act requires that all public housing agencies “make an annual inspection of each public housing project to determine whether units in the project are maintained in accordance with” the requirement that apartments be decent, safe, sanitary and in good repair. 42 U.S.C. § 1437d(f)(3); see also 24 C.F.R. § 5.703. This statutory requirement allows housing agencies some flexibility on how to implement apartment inspections—for example, they may choose to inspect a representative sample rather than every unit. But it does not allow housing agencies simply to suspend all annual apartment inspections.
224. HUD had issued guidance and reviewed these requirements with NYCHA just months prior to NYCHA’s suspension of inspections, and—well aware of the requirements—one
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NYCHA executive voiced concerns to others at NYCHA about the proposal to suspend annual inspections. He advised NYCHA officials that any suspension longer than a few months would violate HUD’s requirements.
225. The suspension of annual inspections in fact lasted two years, until the summer of 2014. As time passed, the NYCHA executive reiterated to higher NYCHA management his concern that NYCHA was in violation of the annual inspection requirement. He was ignored.
226. Through this decision to suspend annual inspections, between August 2012 and the end of December 2013—when NYCHA declared that its backlog reduction efforts had been successful—NYCHA in fact moved an estimated 200,000 work orders off its books based on its prior rate of generating work orders from inspections. It did not disclose this fact to HUD or the public.
227. Suspending inspections did not eliminate the need for the work that the inspections would have found. Rather, it just allowed NYCHA to avoid documenting needed work in its work order system—until some later date when a resident complained about conditions or inspections resumed. During that time, problems would get worse, become more costly to fix, or (as in the case of leaks and pests) spread into additional apartments.
228. When NYCHA resumed apartment inspections in 2014, its backlog promptly began to rise again. B. October 2012 and March 2013: NYCHA Misled HUD at Backlog Meetings
229. In 2012, the then-Secretary of HUD directed NYCHA’s senior executives to travel to Washington to explain NYCHA’s efforts to solve the backlog problem. At the resulting meetings, NYCHA misled HUD as to its plans.
230. On October 18, 2012, NYCHA presented its backlog reduction plan to HUD. NYCHA walked through its backlog reduction plan, showing slides setting out how NYCHA
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planned to eliminate its backlog through “Productivity Improvement.” NYCHA listed six areas in which it would improve its capacity to complete work or increase its efficiency: materials, planning and scheduling, process improvements, staffing, communication, and performance management. All of the “Productivity Improvement Drivers” listed involved increasing NYCHA’s capacity to complete work or the efficiency with which it did so. At no point did NYCHA advise HUD that NYCHA had indefinitely suspended apartment inspections, let alone that NYCHA had done so expressly to reduce the backlog by keeping needed work off the books or that this would be a major driver of its backlog reduction.
231. In February 2013, NYCHA met with HUD’s regional office to discuss its recently announced Work Order Backlog Reduction Initiative. NYCHA described this Initiative in a press release as intended to “eliminat[e] the entire backlog of outstanding repair requests by the end of 2013” “[b]y [h]iring [m]ore [w]orkers and [i]mproving [e]fficiencies.” During its meeting with HUD, NYCHA explained that the Initiative was the same plan that NYCHA presented to HUD in October 2012. Again, NYCHA did not disclose the suspension of annual inspections.
232. In March 2013, during a telephonic meeting with HUD during which NYCHA touted its progress in reducing its backlog, NYCHA again failed to disclose the suspension of inspections. C. NYCHA Changed its Rules to Close Work Orders Without Work
233. Beyond suspending apartment inspections, in February 2013 NYCHA restored a prior policy that allowed NYCHA staff to close work orders by reporting that the resident was not home when the worker arrived to perform the maintenance work. This action was taken on the recommendation of a NYCHA executive who explained in an email that the change was being made specifically to reduce backlog numbers.
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234. This change allowed NYCHA to close nearly 200,000 work orders in 2013 because staff reported that the resident was not home. If not for the new policy, those work orders would have remained in NYCHA’s system until NYCHA actually addressed the underlying problems, resulting in backlog numbers higher than those reported by NYCHA.
235. NYCHA did not disclose this change in methodology to HUD when claiming success in backlog reduction. D. NYCHA Claimed to Have Achieved Meaningful Backlog Reduction
236. Each month from March 2013 through November 2013, NYCHA issued press releases trumpeting its backlog reduction efforts and claiming that these efforts resulted from efficiency improvements at NYCHA. For instance, in its first release, on March 11, 2013, NYCHA reported that it had “reduced the number of open work orders from a peak of over 420,000 to less than 350,000” and claimed that this “reduction is a result of NYCHA’s Action Plan to improve its efficiency in responding to maintenance and repair work orders.”
237. Similarly, throughout 2013, NYCHA’s senior management met with HUD to discuss its backlog reduction plans and progress, and provided HUD updates. Through these updates, NYCHA reported to HUD the monthly reductions in its backlog numbers. In these meetings, NYCHA did not disclose its efforts to artificially reduce its backlog numbers.
238. On January 2, 2014, after years of criticism from the public and HUD, NYCHA announced that it had “successfully reduced its backlog” from 423,000 open maintenance work orders to only 106,000 work orders. NYCHA claimed that this reduction “has positively impacted the conditions in which our residents live.”
239. NYCHA also made statements to HUD in its 2014 and 2015 Annual Plans, linking its backlog reduction to efficiency improvements.
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240. In none of these statements did NYCHA disclose the suspension of inspections that had led to a significant portion of the claimed reduction, nor did it disclose the other devices it used to make its numbers artificially look better than they were.
NYCHA MADE FALSE STATEMENTS ABOUT LEAD PAINT COMPLIANCE AND HOUSING CONDITIONS IN CERTIFICATIONS, CONTRACT AMENDMENTS, AND
FUNDING DRAWDOWNS 241. NYCHA made false statements to HUD multiple times each year when it falsely certified its compliance with HUD requirements. A. False Certifications 242. At least twelve times between 2010 and 2016, NYCHA submitted false certifications to HUD concerning housing conditions. 243. Each certification was submitted as a mandatory part of a Five-Year Plan or Annual Plan package, which in turn are required submissions for all public housing agencies seeking HUD funding, or as part of an Amended Annual Plan package. See 42 U.S.C. § 1437c-1; 24 C.F.R. Part 903, Subpart B. 244. These false certifications, contained in Form HUD-50077, include certifications dated October 14, 2010; October 14, 2011; October 15, 2012; October 11, 2013; July 24, 2014; October 16, 2014; and May 1, 2015; October 12, 2015 (two certifications); May 13, 2016; and October 12, 2016. 245. Each of these certifications was false for multiple reasons. 246. First, in each Form HUD-50077, NYCHA certified that NYCHA “will comply with the Lead-Based Paint Poisoning Prevention Act, the Residential Lead-Based Paint Hazard Reduction Act of 1992, and 24 C.F.R. part 35”—that is, HUD’s lead paint safety regulations.
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247. This statement was false. As described above, at all times since at least 2010, NYCHA has been out of compliance with nearly all of these regulations and statutes, and would not be in compliance going forward.
248. That NYCHA was out of compliance with lead paint regulations was known to senior NYCHA management at the relevant times, as detailed above.
249. Second, in each Form HUD-50077, NYCHA certified that NYCHA “is in compliance with all applicable Federal statutory and regulatory requirements.” This incorporates HUD’s core “decent, safe, and sanitary” regulation. 24 C.F.R. § 5.703.
250. This statement was false. As described above, at all times since at least 2010, NYCHA has been in violation of its obligation to provide “decent, safe, and sanitary” housing, including because of non-compliance with lead paint requirements; pervasive leaks and unchecked mold; inadequate heat in winter; widespread pest infestations; and failed elevator service. 24 C.F.R. § 5.703.
251. This non-compliance was known to senior NYCHA management, who also knew that the non-compliance was being covered up through, among other things, misrepresentations relating to NYCHA’s maintenance backlog reduction and PHAS inspections.
252. Third, two of the certifications, dated October 11, 2013, and July 24, 2014, are false for the additional reason that NYCHA had stopped performing the annual inspections of its developments required by the U.S. Housing Act. 42 U.S.C. § 1437d(f)(3). As discussed above, NYCHA intentionally suspended compliance with this statutory requirement in order to generate artificial reductions in its maintenance work order backlog. B. False Annual Amendments to the Annual Contributions Contract
253. Each year, in order to obtain funding from HUD’s Capital Fund Program, NYCHA enters into an amendment to its “Annual Contributions Contract” with HUD.
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254. The Annual Contributions Contract, or ACC, is a contract between NYCHA and the United States, acting on behalf of HUD. The current version of NYCHA’s ACC was entered into on April 12, 2005. In the ACC, in exchange for HUD subsidies, NYCHA agrees to “develop and operate” its developments in compliance with all provisions of the ACC, as well as “all applicable statutes, executive orders, and regulations issued by HUD,” specifically including the provisions of Title 24 of the Code of Federal Regulations.
255. NYCHA regularly enters into amendments to its ACC to obtain Capital Fund Program grants. These amendments are a critical step in requesting and receiving such grants.
256. Between July 2010 and March 2016, NYCHA entered into approximately twenty such amendments to the ACC. Pursuant to these amendments, over $2 billion in Capital Fund Program grants were paid to NYCHA. NYCHA continued to enter into such amendments after March 2016, and will do so in the future.
257. In each amendment, NYCHA represents that it will “continue to operate each development”—or in some of the amendments, synonymously, “continue to operate each public housing project”—as low-income housing “in compliance with” the ACC. The ACC requires compliance with regulations, including Title 24 of the Code of Federal Regulations. This, in turn, incorporates HUD’s lead paint safety regulations and core “decent, safe, and sanitary” regulations. 24 C.F.R. § 5.703.
258. In each amendment, NYCHA’s representation is false. As described above, at all times since at least 2010, NYCHA has been in violation of the lead paint safety regulations and its obligation to provide “decent, safe, and sanitary” housing. Additionally, the ACC amendments between about August 2012 and summer of 2014 were false because NYCHA had stopped
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performing the annual inspections of its developments as required by the U.S. Housing Act. 42 U.S.C. § 1437d(f)(3).
259. As discussed above, NYCHA senior management, and others, knew about NYCHA’s non-compliance. C. False Representations Through Drawdown of Operating Funds
260. HUD issues periodic Obligation Letters to NYCHA, which notify NYCHA that it can draw down the Operating Fund subsidies HUD has made available to NYCHA for that funding period.
261. Each Obligation Letter states that “[a]ll funds must be used in accordance with the Annual Contributions Contract and associated laws and regulations,” which, as described above, includes Title 24 of the Code of Federal Regulations. Each letter also notifies NYCHA that “[b]y drawing down the funds obligated in this letter, [NYCHA is] confirming agreement and compliance with . . . all terms and conditions of the Operating Fund program,” which includes, but is not limited to, the requirements of the U.S. Housing Act and the ACC.
262. Each year, HUD issues multiple such Obligation Letters to NYCHA, pursuant to which NYCHA draws down Operating Fund subsidies. In 2016 alone, HUD issued to NYCHA nine Obligation Letters that obligated to NYCHA over $7.3 million in funds. NYCHA will continue to draw down funds pursuant to such Operating Fund Obligation letters in the future.
263. Each time NYCHA drew down Operating Funds pursuant to these Obligation Letters, NYCHA falsely confirmed its compliance with the ACC and the U.S. Housing Act. As described above, at all times since at least 2010, NYCHA has been in violation of the lead paint safety regulations and its obligation to provide “decent, safe, and sanitary” housing. Additionally, NYCHA’s confirmations of compliance when it drew down funds between about August 2012
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and summer of 2014 were false because NYCHA had stopped performing the annual inspections of its developments as required by the U.S. Housing Act. 42 U.S.C. § 1437d(f)(3).
264. As discussed above, NYCHA senior management and others knew about NYCHA’s non-compliance.
NYCHA CAUSED NEW YORK CITY TO MAKE FALSE STATEMENTS ABOUT LEAD PAINT COMPLIANCE IN ITS ANNUAL “CONSOLIDATED PLANS” SUBMITTED TO HUD
265. Every year, New York City must submit a “Consolidated Plan” to HUD. The Consolidated Plan “serves as [New York City’s] comprehensive housing affordability strategy, community development plan, and submissions for funding” under certain HUD grant programs. 24 C.F.R. § 91.5.
266. Every year from at least 2011 through 2016, NYCHA has submitted the following false statement to New York City, which New York City then incorporated into its Consolidated Plan and submitted it to HUD:
NYCHA complies with Federal, State, and City regulations concerning lead paint hazards and executes HUD directives regarding lead-based paint (LBP). NYCHA identifies hazards posed by paint, dust and soil, and implements programs designed to control or mitigate such hazards safely and efficiently. 267. These statements were submitted to New York City by or at the direction of NYCHA officials, who knew at the time of their submission that the statements were untrue.
CLAIM FOR RELIEF COUNT ONE: SUBSTANTIAL DEFAULT 268. The United States repeats and realleges the allegations in paragraphs 1 through 267. 269. As described above, NYCHA has violated HUD regulations including the LeadSafe Housing Rule, 24 C.F.R. Part 35, Subparts (B-R), and its obligation to provide “decent, safe,
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and sanitary” housing, 24 C.F.R. § 5.703; has engaged in deceptive conduct with respect to PHAS inspections; and has violated applicable terms of NYCHA’s Annual Contributions Contract.
270. These violations of federal law and the Annual Contributions Contract constitute a substantial default by NYCHA with respect to the covenants or conditions to which NYCHA is subject. See 42 U.S.C. § 1437d(j)(3)(A).
271. Accordingly, the United States is entitled to an order providing for injunctive relief and appointment of a monitor under 42 U.S.C. § 1437d(j)(3), to remedy NYCHA’s substantial default with respect to covenants or conditions to which NYCHA is subject.
COUNT TWO: ANTI-FRAUD INJUNCTION ACT 272. The United States repeats and realleges the allegations in paragraphs 1 through 271. 273. The Anti-Fraud Injunction Act, 18 U.S.C. § 1345, authorizes the United States to commence a civil action to enjoin any ongoing or impending violation of certain specified predicate offenses and for related relief. These predicate offenses include 18 U.S.C. § 1001. See 18 U.S.C. § 1345(a)(1)(A). 274. NYCHA has unlawfully, willfully, knowingly, or acting with deliberate ignorance and/or with reckless disregard of the truth, in matters within the jurisdiction of HUD, falsified, concealed, or covered up by tricks, schemes, and devices a material fact; made materially false, fictitious, or fraudulent statements and representations; and made and used false writings or documents knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001. Specifically, from at least 2010, NYCHA has unlawfully, willfully, knowingly, or acting with deliberate ignorance and/or with reckless disregard of the truth, (i) repeatedly made false statements (including through material omissions) to HUD regarding conditions at NYCHA and NYCHA’s compliance with the U.S. Housing Act
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and HUD regulations, (ii) repeatedly concealed and covered up conditions and NYCHA’s noncompliance with the U.S. Housing Act and HUD regulations, and (iii) repeatedly made and used knowingly false writings and documents to deceive HUD regarding conditions at NYCHA and NYCHA’s noncompliance with the U.S. Housing Act and HUD regulations.
275. Without injunctive relief, NYCHA’s deceptive conduct and its ongoing effects will continue.
276. Accordingly, the United States is entitled to an order providing for injunctive relief and appointment of a monitor under 18 U.S.C. § 1345, to prevent NYCHA, its employees, and all those in concert with them from committing further violations of 18 U.S.C. § 1001 and to require NYCHA to mitigate the effects of prior violations.
COUNT THREE: VIOLATIONS OF TSCA AND THE RRP RULE 277. The United States on behalf of EPA repeats and realleges the allegations in paragraphs 1 through 276. 278. NYCHA is a “firm” that performs “renovations” within the meaning of the RRP Rule. 279. NYCHA has failed to comply with the requirements of the RRP Rule in performing such renovations, including but not limited to failing to ensure that a certified renovator is assigned to each such renovation and that its employees other than certified renovators are properly trained on safe work practices, in violation of 40 C.F.R. §§ 745.81(a)(3), 745.89(d)(1), and 745.89(d)(2); failing to follow safe work-practice requirements before, during, after the renovation, in violation of 40 C.F.R. §§ 745.85 and 745.89(d)(3); and failing to provide residents with required information and warnings, in violation of 40 C.F.R. §§ 745.84(a), 745.85(a)(1), 745.89(d)(3), and 745.89(d)(4). 280. Violations of the RRP Rule are “prohibited acts” under TSCA. 15 U.S.C. § 2689.
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281. Without injunctive relief, NYCHA will continue to fail to comply with the RRP Rule and TSCA when performing work covered by the Rule.
282. Accordingly, pursuant to sections 17 and 409 of TSCA, 15 U.S.C. §§ 2616 and 2689, the United States is entitled to an order enjoining NYCHA to comply with the RRP Rule and TSCA, and mitigate the effects of past violations.
PRAYER FOR RELIEF WHEREFORE, the United States respectfully requests that the Court:
(i) Order injunctive relief and appointment of a monitor under 42 U.S.C. § 1437d(j)(3), to remedy NYCHA’s substantial default with respect to covenants or conditions to which NYCHA is subject;
(ii) Order injunctive relief and appointment of a monitor under 18 U.S.C. § 1345, to prevent NYCHA, its employees, and all those in concert with them from committing further violations of 18 U.S.C. § 1001 and to require NYCHA to mitigate the effects of prior violations.
(iii) Order NYCHA to comply with the RRP Rule and TSCA, and to mitigate the effects of past violations; and
(iv) Order such further relief as the Court may deem just and proper.
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Dated: June 11, 2018 New York, New York

GEOFFREY S. BERMAN United States Attorney Attorney for the United States
/s/ Geoffrey S. Berman ROBERT WILLIAM YALEN MÓNICA P. FOLCH JACOB LILLYWHITE TALIA KRAEMER SHARANYA MOHAN Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: (212) 637-2800 Fax: (212) 637-2702 Email: robert.yalen@usdoj.gov
monica.folch@usdoj.gov jacob.lillywhite@usdoj.gov talia.kraemer@usdoj.gov sharanya.mohan@usdoj.gov

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EXHIBIT A Developments Identified by NYCHA as Containing Lead Paint
131 SAINT NICHOLAS AVENUE 344 EAST 28TH STREET 830 AMSTERDAM AVENUE ALBANY ALBANY II AMSTERDAM ASTORIA BARUCH BLAND BREUKELEN BREVOORT BRONX RIVER CASTLE HILL CLAREMONT REHAB (GROUP 4) CLASON POINT GARDENS COOPER PARK DYCKMAN EAST RIVER EASTCHESTER GARDENS ELLIOTT FHA REPOSSESSED HOUSES (GROUP I) FHA REPOSSESSED HOUSES (GROUP II) FHA REPOSSESSED HOUSES (GROUP III) FHA REPOSSESSED HOUSES (GROUP IV) FHA REPOSSESSED HOUSES (GROUP IX) FHA REPOSSESSED HOUSES (GROUP V)

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FHA REPOSSESSED HOUSES (GROUP VI) FHA REPOSSESSED HOUSES (GROUP VII) FHA REPOSSESSED HOUSES (GROUP VIII) FHA REPOSSESSED HOUSES (GROUP X) FIRST HOUSES GLENMORE PLAZA GLENWOOD GRANT GRAVESEND GUN HILL HAMMEL HARLEM RIVER HARLEM RIVER II HIGHBRIDGE GARDENS INDEPENDENCE JOHNSON KINGSBOROUGH LEXINGTON LINCOLN LONG ISLAND BAPTIST HOUSES MANHATTANVILLE MANHATTANVILLE REHAB (GROUP 2) MARBLE HILL MARINER'S HARBOR MARLBORO MILL BROOK MILL BROOK EXTENSION MITCHEL MONROE
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NOSTRAND PARKSIDE PELHAM PARKWAY POLO GROUNDS TOWERS POMONOK QUEENSBRIDGE NORTH RANGEL RAVENSWOOD RED HOOK EAST RED HOOK WEST REHAB PROGRAM (DOUGLASS REHABS) RICHMOND TERRACE RIIS RIIS II SAINT NICHOLAS SEDGWICK SEWARD PARK EXTENSION SMITH SOUNDVIEW SOUTH BEACH SOUTH JAMAICA II STAPLETON STRAUS SUMNER SURFSIDE GARDENS THROGGS NECK TODT HILL UNITY PLAZA (SITES 4-27) VAN DYKE I
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Case 1:18-cv-05213 Document 1 Filed 06/11/18 Page 79 of 80 WALD WEBSTER WEEKSVILLE GARDENS WILLIAMSBURG WILSON WISE TOWERS WOODSIDE WSUR (SITE A) 120 WEST 94TH STREET
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EXHIBIT B Developments for Which Required EIBLL Triggered Risk Assessment Was Not Performed
EDENWALD FORT INDEPENDENCE STREET-HEATH AVENUE MARCY MELROSE

 
 Case 1:18-cv-05213-WHP Document 5-1 Filed 06/11/18 Page 1 of 29

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------- x

:

UNITED STATES OF AMERICA,

:

:

Plaintiff,

:

:

v.

:

:

NEW YORK CITY HOUSING AUTHORITY, :

:

Defendant.

:

:

--------------------------------------------------------------- X

18 Civ. 5213

CONSENT DECREE

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TABLE OF CONTENTS

I.

RECITALS ...................................................................................................................................... 1

II. ADMISSIONS ................................................................................................................................. 1

III. JURISDICTION AND VENUE ...................................................................................................... 4

IV. APPLICABILITY............................................................................................................................ 4

V. DEFINITIONS................................................................................................................................. 4

VI. MONITORSHIP .............................................................................................................................. 6

VII. COOPERATION BY NYCHA...................................................................................................... 12

VIII. HUD ASSISTANCE...................................................................................................................... 12

IX. FUNDING AND RELATED PROVISIONS ................................................................................ 13

X. INSTITUTIONAL CHANGES ..................................................................................................... 15

XI. RELIEF COMMENCING PRIOR TO EFFECTIVE DATE OR MONITOR .............................. 16

XII. MATTERS RESOLVED ............................................................................................................... 17

XIII. FORCE MAJEURE ....................................................................................................................... 18

XIV. DISPUTE RESOLUTION AND COMPELLING PERFORMANCE .......................................... 19

XV. INFORMATION COLLECTION AND RETENTION ................................................................ 19

XVI. COSTS ........................................................................................................................................... 20

XVII. NOTICES....................................................................................................................................... 20

XVIII. EFFECTIVE DATE....................................................................................................................... 21

XIX. MODIFICATION .......................................................................................................................... 21

XX. TERMINATION............................................................................................................................ 21

XXI. SIGNATORIES/SERVICE............................................................................................................ 22

XXII. INTEGRATION ............................................................................................................................ 22

XXIII. FINAL JUDGMENT ..................................................................................................................... 22

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I. RECITALS

1.

WHEREAS, plaintiff the United States of America commenced this action

against the defendant New York City Housing Authority (“NYCHA”) for appointment of a

monitor and injunctive and other relief pursuant to the U.S. Housing Act of 1937 (“Housing

Act”), 42 U.S.C. § 1437d(j)(3), the Anti-Fraud Injunction Act, 18 U.S.C. § 1345, the Residential

Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4852d(b)(1), and the Toxic

Substances Control Act, 15 U.S.C. § 2616(a)(1);

2.

WHEREAS, the United States alleges that NYCHA violated and continues to

violate lead paint safety regulations promulgated by the U.S. Department of Housing and Urban

Development and the U.S. Environmental Protection Agency, see 24 C.F.R. part 35; 40 C.F.R.

part 745, as well as other HUD regulations, including those requiring public housing agencies to

provide housing that is “decent, safe, sanitary and in good repair,” 24 C.F.R. § 5.703;

3.

WHEREAS, the City of New York (the “City”) agrees to the funding

commitment in paragraphs 54 to 62 of this Consent Decree;

4.

WHEREAS, the Parties agree that settlement of this case is in the public interest

and that entry of this Consent Decree is an appropriate means of resolving the claims asserted by

the United States in its Complaint; and

5.

WHEREAS, the Court finds that this Consent Decree is fair, reasonable, and

consistent with the public interest;

6.

NOW, THEREFORE, with the consent of the Parties, it is hereby ORDERED,

ADJUDGED and DECREED as follows:

II. ADMISSIONS

7. conduct:

NYCHA admits, acknowledges, and accepts responsibility for the following

Statements to HUD

a. At least once a year, beginning no later than 2010 and extending through 2016, NYCHA’s certifications to HUD contained untrue representations that NYCHA “will comply with” HUD’s federal lead paint safety regulations.

b. At least once a year, beginning no later than 2010 and extending through 2016, NYCHA’s certifications to HUD contained untrue representations that NYCHA was “in compliance with all applicable Federal statutory and regulatory requirements.”

c. Every year, since at least 2011 and through 2016, NYCHA submitted to HUD, via New York City’s Consolidated Plans, untrue statements that “NYCHA complies with Federal, State, and City regulations concerning lead and executes HUD directives regarding lead-based paint (LBP).”

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Lead Paint
d. In more than half of NYCHA’s developments, NYCHA’s inspections (including statistical sampling) have confirmed the presence of lead paint somewhere on the premises, and in at least 92 developments, the inspections (including statistical sampling) have confirmed the presence of lead paint inside apartment units.
e. Since at least 2010, NYCHA has not performed most of the biennial lead paint risk assessment reevaluations required by regulation for developments containing lead paint. In a 2011 email, a NYCHA director advised a NYCHA executive that NYCHA was not conducting required risk assessment reevaluations.
f. From at least 2012 to 2016, NYCHA failed to perform visual assessments of apartments for lead paint hazards as required by regulation. In 2016, NYCHA began performing visual assessments in units where children under six reside, but NYCHA has not yet performed visual assessments in the majority of apartments that may contain lead paint.
g. Since at least 2010, NYCHA has not ensured that staff use lead-safe work practices when performing work on surfaces that may contain lead paint. NYCHA’s policies and procedures do not ensure that maintenance workers are informed that the surfaces they work on contain lead paint. Less than one-third of the maintenance workers assigned to NYCHA developments with lead paint are trained in lead-safe work practices. In May 2016 email, a NYCHA executive advised that “there [were] only 33 paint[ers]/paint supervisors trained in lead safe practices” working in Brooklyn developments. NYCHA has determined that at least 12,000 apartments in Brooklyn developments may contain lead paint.
h. From at least 2010 until 2015, NYCHA did not provide HUD with any information regarding children living at NYCHA who had been found to have an environmental intervention blood lead level (“EIBLL”).
Mold Growth
i. Between 2011 and present, NYCHA residents have made many thousands of complaints about mold growth every year.
j. In many cases, NYCHA staff verified that the mold growth covered 10 or more square feet. In nearly 300 cases between 2014 and 2016, the verified mold growth covered more than 100 square feet.
k. Currently, after NYCHA has removed mold from apartments, the mold returns at least 30% of the time.
Adequate Heating
l. Residents called in roughly 825,000 complaints of insufficient heat between 2011 and 2016.
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m. In Winter 2017-2018 alone, more than 320,000 residents, 80% of the public housing population, lost heat.
Functional Elevators
n. In 2016 alone, NYCHA experienced an average of more than 13 outages per elevator. The majority of NYCHA elevator buildings had at least one period with no functioning elevator service in 2016.
o. Although NYCHA provides stair climbers to elderly or disabled residents in certain circumstances, NYCHA elevator outages can leave residents, including elderly and disabled residents, stranded in the lobby of their building.
Pest Infestations
p. NYCHA’s data reflects more than 260,000 work orders for roaches between 2013 and 2016. For the same period, there were more than 90,000 mouse work orders and nearly 36,000 rat work orders.
q. The number of work orders created for roaches nearly doubled between 2013 and 2016, and the number of apartments reporting mice and rat complaints has been increasing since 2013.
Backlog
r. From 2012 to 2013, NYCHA reported to HUD significant progress in reducing its backlog of work orders. During the same period, NYCHA suspended annual inspections, resulting in the creation of substantially fewer work orders. NYCHA reported its progress to HUD without mentioning its suspension of annual inspections.
HUD Inspections
s. Every year, HUD assesses living conditions at NYCHA through Public Housing Assessment System (“PHAS”) inspections.
t. For a decade, NYCHA provided its staff with a list of “Quick Fix Tips” to improve inspection scores. These Quick Fix Tips included replacing damaged ceiling tiles with “painted cardboard,” covering broken fences with 2x4s painted black, and placing “improperly stored flammables” “out of sight” on the day of an inspection.
u. In one 2013 email, a NYCHA superintendent wrote to staff members, “We’re hiding four big pails of oil behind your containers for our PHAS inspection today. We’ll get them after it’s over.” The superintendent then forwarded his email to a NYCHA director, to request assistance in eventually disposing of the oil.
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III. JURISDICTION AND VENUE

8.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331 and 1345, 15 U.S.C. § 2616, 42 U.S.C. § 1437(d)(j)(3), and 42 U.S.C. § 4852d.

9.

Venue is proper in this district under 28 U.S.C. § 1391(b)(1) and (2) because the

defendant resides in this district and because a substantial part of the events giving rise to the

claims occurred in this district. For purposes of this Consent Decree, or any action or proceeding

to enforce this Consent Decree, NYCHA consents to venue in the Southern District of New York

and to this Court’s jurisdiction over this Consent Decree, over any such action or proceeding,

and over NYCHA.

10. For purposes of this Consent Decree, NYCHA does not contest that the Complaint states claims against NYCHA upon which relief may be granted.

IV. APPLICABILITY

11. NYCHA shall provide a copy of this Consent Decree, or an appropriate summary, to all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Consent Decree, as well as to any contractor or subcontractor retained to perform work required to comply with this Consent Decree, including Performance Requirements and Action Plans.

12. In any action to enforce this Consent Decree, NYCHA shall not raise as a defense the failure by any of its officers, directors, employees, agents, contractors, or subcontractors to take any actions necessary to comply with this Consent Decree, including Performance Requirements and Action Plans, except to the extent permitted by Section XIII (Force Majeure) below.

V. DEFINITIONS

13. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply:

a. “The Anti-Fraud Injunction Act” means the section of the United States Code set forth at 18 U.S.C. § 1345.

b. “Action Plan” means one or more detailed plans for complying with a requirement stated in the Consent Decree, as further defined in paragraphs 27 through 36.

c. “Board” means the board of NYCHA, including all of its members.

d. “Chair” or “NYCHA Chair” means the chairperson of NYCHA.

e. “Complaint” means the complaint filed by the United States in this action.

f. “Consent Decree” means this consent decree.

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g. “EPA” means the U.S. Environmental Protection Agency.
h. “Executive Order” means the Executive Order No. 180 issued on April 2, 2018, by the Governor of the State of New York, including any amendments thereto.
i. “Housing Act” means the U.S. Housing Act of 1937, set forth at 42 U.S.C. § 1437d.
j. “HUD” means the U.S. Department of Housing and Urban Development.
k. “Lead Paint Free” means, for a residential property, that the property has been found not to have lead paint by a lead paint inspection conducted in accordance with 24 C.F.R. § 35.1320(a) (or that results of additional tests by a certified lead paint inspector refuted a prior finding that lead paint was present); or that all lead paint on the property has been identified and removed, and clearance has been achieved in accordance with 40 C.F.R. § 745.227(e) before September 15, 2000, or in accordance with 24 C.F.R. §§ 35.1320, 35.1325 and 35.1340 on or after September 15, 2000. This term does not apply to residential property where enclosure or encapsulation has been used as a method of abatement.
l. “Lead Paint Laws” means federal, state or local lead paint safety statutes and regulations, including but not limited to the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4851; the Toxic Substances Control Act, 15 U.S.C. § 2616(a)(1); the Lead-Safe Housing Rule, 24 C.F.R. part 35; the Renovation, Repair, and Painting Rule, 40 C.F.R. part 745, subpart E; the Abatement Rule, 40 C.F.R. part 745, subpart L; and the Lead Disclosure Rule, 24 C.F.R. part 35, subpart A & 40 C.F.R. part 745, subpart F.
m. “Monitor” means the individual appointed pursuant to paragraphs 15 and 16 of this Consent Decree.
n. “NYCHA housing” means the apartment units, common areas, residential buildings, and building sites consisting of public housing owned or operated by NYCHA and receiving funding through Section 9 of the Housing Act.
o. “Parties” means the United States, NYCHA and, with respect to its funding commitment in paragraph 54 of this Consent Decree, the City.
p. “Performance Requirements” means objective quantitative benchmarks developed pursuant to the process set forth in paragraphs 23 to 25 of this Consent Decree.
q. “PHAS Inspections” means HUD’s Public Housing Assessment System inspections. See generally 24 C.F.R. Part 902.
r. “Quarter” means each three-month period ending March 31, June 30, September 30, and December 31 of each calendar year.
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s. “Quarterly Report” means the reports defined in paragraphs 41 to 43 of this Consent Decree.
t. “TSCA” means the Toxic Substances Control Act, set forth at 15 U.S.C. § 2601 et seq. VI. MONITORSHIP
Purpose 14. The purpose of the Monitorship shall be to ensure that NYCHA (1) complies with all Lead Paint Laws, (2) provides housing that is decent, safe, sanitary, and in good repair, in accordance with 24 C.F.R. § 5.703, (3) does not make false or misleading statements to the United States, and (4) implements the terms of the Consent Decree. Selection 15. The United States shall propose a Monitor for approval by the Court. The Monitor shall be an individual chosen on the basis of merit. The United States will provide NYCHA and the City an opportunity to provide their views to the United States with respect to possible monitors. The United States in its discretion will also provide an opportunity for other stakeholders, including New York State, the New York City Council, and tenant groups, including the Citywide Council of Presidents, to provide views on selection of a Monitor. NYCHA and the City have the right to submit objections within 15 days of the United States’ presentation of the monitor for approval by the Court. 16. In the event that the person who is approved as Monitor resigns or otherwise ceases to serve as Monitor, the United States shall propose a new Monitor pursuant to paragraph 15 for approval by the Court. 17. The Monitor shall engage such staff, expert consultants, or other third-party contractors as he or she deems appropriate to use his or her powers fully and perform his or her responsibilities fully. General Powers and Responsibilities 18. The Monitor shall use his or her powers under this Consent Decree to ensure that the Monitorship’s purposes are achieved and that NYCHA complies with, and on an ongoing basis will continue to comply with, these requirements:
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a. NYCHA shall be in compliance with, and comply on an ongoing basis with, the requirements to (1) conduct visual assessments annually and at unit turn-over, 24 C.F.R. §§ 35.1120(c) and 35.1355(a)(2); (2) conduct biennial risk assessment reevaluations, 24 C.F.R. §§ 35.1120(c) and 35.1355(b)(4); (3) use lead-safe work practices, including training and certification, site preparation, containment, clean-up, and notification to residents, 24 C.F.R. §§ 35.1120(b) and (c), 35.1345, 35.1350, 35.1355(a)(4), and 40 C.F.R. part 745 subparts E and L; (4) follow elevated blood lead level response and notification requirements, 24 C.F.R. §§ 35.110, 35.1130; (5) make disclosures in accordance with the Lead Disclosure Rule, 24 C.F.R. part 35, subpart A and 40 C.F.R. part 745 subpart F; (6) review the adequacy of prior testing for lead paint and lead-free determinations by NYCHA; (7) comply in all respects with Lead Paint Laws; and (8) make NYCHA Housing fully Lead Paint Free within an accelerated timeframe (except as provided in paragraph 33 below).
b. NYCHA public housing shall be “free of mold,” 24 C.F.R. § 5.703(f), and NYCHA shall remedy the conditions described in the Complaint related to mold and prevent recurrence of those conditions.
c. NYCHA shall provide heating that is “functionally adequate, operable, and in good repair,” 24 C.F.R. § 5.703(c), including by complying with New York City Administrative Code § 27-2029a and 24 C.F.R. § 5.703(g), and shall remedy the conditions described in the Complaint related to heat and prevent recurrence of those conditions.
d. NYCHA shall provide elevators that are “functionally adequate, operable, and in good repair,” 24 C.F.R. § 5.703(c), and shall remedy the conditions described in the Complaint related to elevators and prevent recurrence of those conditions.
e. NYCHA public housing shall be “free of infestations by rats, mice, or other vermin,” 24 C.F.R. § 5.703(f); see also 24 C.F.R. § 5.703(a), and NYCHA shall remedy the conditions described in the Complaint related to pests and prevent recurrence of those conditions.
f. NYCHA shall attempt to avoid and promptly address any other health and safety issue that arises.
g. NYCHA shall ensure the integrity of PHAS and other inspections.
19. The Monitor shall have full access to all information in NYCHA’s possession, including but not limited to data systems, documents, and materials, and full access to all programs, services, facilities, and premises under the control of NYCHA.
20. The Monitor may communicate with NYCHA officers, employees, contractors, managers or board members, without notice to NYCHA and without NYCHA’s permission or presence, provided that such individuals shall not provide any information subject to the attorney-client privilege or attorney work product protection without NYCHA’s consent.
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NYCHA shall make any such individuals within its control available to the Monitor upon request.
21. The Monitor will periodically (but at least twice annually) convene a Community Advisory Committee, consisting of NYCHA stakeholders such as NYCHA’s Resident Advisory Board; resident, community, and employee representatives; senior NYCHA managers; and other relevant stakeholders to solicit input regarding the achievement of the Monitorship’s purpose. Such stakeholders may advise the Monitor regarding the prioritization of projects.
22. The Monitor shall establish procedures for the Monitor to communicate with and solicit comment from residents and other NYCHA stakeholders outside of the Community Advisory Committee.
Development and Implementation of Performance Requirements
23. As soon as practicable after the Monitor’s appointment, the Monitor shall develop Performance Requirements, in consultation with NYCHA and the City, to achieve compliance with the requirements of paragraphs 18(b) through (f). The Monitor shall prioritize development of Performance Requirements that (in his or her judgment) are necessary to address emergent health and safety issues. Proposed Performance Requirements shall be submitted to the United States for approval.
24. Performance Requirements approved by the United States shall be filed by the Monitor on the Court’s public docket. A Performance Requirement shall be binding on NYCHA and enforceable by the Monitor or the United States beginning 30 days after its filing on the public docket, unless NYCHA has filed an objection with the Court. If NYCHA timely files such objection, the Performance Requirement shall not go into effect until the Court resolves the objection. On any such objection, the Performance Requirement shall be modified or set aside by the Court only if found to be arbitrary and capricious.
25. If the United States disapproves the Monitor’s proposed Performance Requirements, and the United States and the Monitor are unable to agree on a revision to the proposed Performance Requirements, the Monitor may ask the Court to approve the proposed Performance Requirements notwithstanding the United States’ disapproval. Within 30 days thereafter, the United States and NYCHA shall have an opportunity to submit any objections to, or arguments in support of, such Performance Requirements. The Monitor’s Performance Requirements shall be modified or set aside by the Court only if found to be arbitrary and capricious. If not set aside, the Performance Requirement shall go into effect upon order of the Court resolving the objection.
26. The Monitor, in consultation with NYCHA, may develop modifications to previously approved Performance Requirements. Such proposed modified Performance Requirements are subject to the approval process and other terms described in paragraphs 23 to 25.
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Action Plans, Organizational Plan, and Operational Plan
27. As soon as practicable after the Monitor’s appointment, NYCHA and the Monitor collaboratively shall prepare one or more proposed Action Plans for the achievement of the requirements set forth in paragraph 18(a) and (g), and as soon as practical after each Performance Requirement goes into effect, NYCHA and the Monitor collaboratively shall prepare one or more proposed Action Plans for the achievement of each Performance Requirement and the requirements set forth in paragraph 18(b) through 18(f). NYCHA and the Monitor shall consider public health and safety, cost, and other factors deemed relevant by the Monitor in developing Action Plans. Each proposed Action Plan shall set forth specific actions necessary to bring NYCHA into sustained compliance with these requirements, shall require NYCHA to satisfy these requirements by a date certain, and shall include interim milestones with specific completion dates.
28. As soon as practicable after the Monitor’s appointment, NYCHA in consultation with the Monitor shall develop an operational plan (“Operational Plan”) clearly delineating the roles, responsibilities, authorities, and reporting lines of NYCHA’s Chair, General Manager, and Board, to enable NYCHA to expeditiously fulfill the purposes of the Consent Decree and submit such Operational Plan to the Monitor for review. If NYCHA and the Monitor are unable to agree on an Operational Plan, then the Monitor shall develop his or her own Operational Plan pursuant to paragraph 31.
29. As soon as practicable after the Monitor’s appointment, NYCHA in consultation with the Monitor shall prepare a proposed plan (“Organizational Plan”) for the implementation of changes to NYCHA’s management, organizational, and workforce structure, including work rules, necessary or appropriate to achieve sustained compliance with the Performance Requirements and the requirements set forth in paragraph 18(a) through 18(g) and submit such Organizational Plan to the Monitor for review. If NYCHA and the Monitor are unable to agree on an Organizational Plan, then the Monitor shall develop his or her own Organizational Plan pursuant to paragraph 31.
30. Proposed Action Plans, the proposed Operational Plan, and the proposed Organizational Plan (collectively, “Plans”) developed pursuant to paragraphs 27, 28, and 29 shall be submitted to the City for comment and to the United States for approval. If approved by the United States, such Plans shall be filed on the Court’s public docket, shall be binding on NYCHA as of the date of filing on the docket, and shall be enforceable by the Court upon application by the Monitor or the United States.
31. If the Monitor and NYCHA are unable to agree on a Plan, or the United States does not approve a Plan submitted to it, the Monitor may instead develop his or her own Plan and submit it directly to the Court for approval. Within 30 days thereafter, the United States and NYCHA shall have an opportunity to submit any objections to, or arguments in support of, such Plan. The Monitor’s Plan shall be modified or set aside by the Court only if found to be arbitrary and capricious. If not set aside, the Plan will go into effect upon order of the Court resolving the objection.
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32. The Monitor and NYCHA together may develop a proposed modification to a Plan. Such proposed modified Plan is subject to the approval process and other terms described in paragraphs 30 through 31, including the ability of the Monitor to submit his or her own modification to the Court in the absence of agreement.
33. In an Action Plan addressing the requirements in paragraph 18(a), the Monitor may propose to modify paragraph 18(a)(8) to permit abatement of specific NYCHA developments by methods that are authorized by federal regulations other than removal, upon a finding by the Monitor that NYCHA will be able to comply with the ongoing maintenance and other obligations associated with using such alternate methods and that permitting such alternate measures will further the purposes of this Consent Decree. Upon approval of such Action Plan pursuant to paragraphs 30 and 31, paragraph 18(a)(8) shall be deemed modified for purposes of this Consent Decree.
34. An Action Plan may include, among other things, policies, procedures, systems, personnel and management structures to be adopted by NYCHA in order to come into compliance with, and maintain compliance with, federal law and NYCHA’s obligations contained in paragraph 18 and otherwise as set forth in this Consent Decree.
35. The Monitor shall not be responsible for NYCHA’s day-to-day operations. Nothing in this paragraph is intended to limit the powers of the Monitor otherwise granted under this Consent Decree.
36. In addition to any other powers of the Monitor under this Consent Decree, the Monitor may, pursuant to an Action Plan, direct NYCHA to select an independent contractor through an open and public bidding process, consistent with applicable law, which shall detail the scope of work and which shall make the selection based upon the contractor’s experience, skill, expertise, and the estimated time and cost of repairs. The Monitor shall give such direction when the Monitor believes it is important to achieve or sustain NYCHA’s compliance with the Consent Decree.
37. In addition to any other powers of the Monitor under this Consent Decree, if the purpose of the Consent Decree is being frustrated by the inability of NYCHA to comply with an Action Plan, the Monitor, with the consent of the United States, may apply to the Court seeking extraordinary relief, including the authority to enter into contracts on NYCHA’s behalf. The Monitor must present compelling evidence in support of his or her application.
Executive Order and Court-Appointed Officers
38. Pursuant to the terms and conditions of the Executive Order, as it may be amended, $550 million in state resources may be available. Both the Monitor and NYCHA may take advantage of procurement flexibility afforded by federal, state, and local law, including provisions of the Executive Order relating to rules of procurement and contracting and design/build authority consistent with applicable federal law. The Parties agree that receipt of the $550 million in emergency state resources and the procurement flexibility afforded by provisions of the Executive Order relating to rules of procurement and contracting and design/build authority are important to the success of this Consent Decree.
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39. The Monitor shall coordinate with any other court-appointed officers addressing matters covered by this Consent Decree, including the Special Master appointed in Baez v. NYCHA, No. 13 Civ. 8915, as well as any relevant federal, state or local agencies or inspectors. In the event that the action or failure to take action of another court-appointed officer interferes with achieving the purposes of this Consent Decree, the Monitor, with the consent of the United States, may seek relief from the Court.
Judicial Supervision
40. The Monitor, as an officer of the Court, shall be supervised by the Court.
Reporting
41. The Monitor shall submit a Quarterly Report, beginning after the first full quarter after the date of appointment, to the United States, NYCHA’s Chair and Board, and the Court, on the Court’s public docket, setting out:
a. The work performed by the Monitor during the relevant period;
b. Objective data showing NYCHA’s progress toward achievement of established Performance Requirements and other requirements of Action Plans, including interim milestones;
c. The extent to which NYCHA is complying with the Consent Decree and any approved Performance Requirements and Action Plans; and
d. Any other information the Monitor may deem appropriate to include in light of the Monitorship’s purpose.
42. The Monitor will provide draft Quarterly Reports to the Parties at least 15 business days in advance of issuance. The Parties shall provide any comments on the report within 10 business days of receiving the draft report. The Monitor shall consider the Parties’ comments and may make changes before issuing the report.
43. The Quarterly Report issued five years from the Effective Date, and each Quarterly Report thereafter, shall include an assessment of whether NYCHA meets the requirements for termination of this Consent Decree, as described in paragraph 97.
44. After two years after the Effective Date, the Monitor may propose reducing the frequency of Quarterly Reports to semi-annual. The reports shall continue to set out the information required for Quarterly Reports under paragraphs 41 and 43. If any Party objects to the Monitor’s proposal, the dispute may be submitted to the Court pursuant to paragraphs 84 to 86.
45. The Monitor may communicate at his or her discretion and ex parte with any Party, the Court, the public, and representatives of any federal, state, or local government entity.
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Removal of Monitor
46. A Monitor may be removed by the Court for cause.
VII. COOPERATION BY NYCHA
47. NYCHA shall cooperate in all respects with actions taken by the Monitor under this Consent Decree.
VIII. HUD ASSISTANCE
48. The Monitor shall assist NYCHA in seeking such regulatory relief from HUD as he or she deems is necessary for NYCHA to comply expeditiously and in a cost-effective manner with its obligations under the Consent Decree. Such regulatory relief may include:
a. The use of a procurement process for capital improvement projects where any such contract is awarded in a manner consistent with the best value two-step procurement process set forth in Part LLL of c. XXX of the New York Laws of 2018;
b. An increase in the micro-threshold for all contracts to $25,000;
c. An increase in the small purchase procurement threshold to $250,000; and
d. Contracts for the same scope of services (where the aggregate of such contracts exceeds the small purchase procurement threshold) to be procured separately by the small purchase procurement method by borough and/or development(s) rather than NYCHA-wide, where justified by need and approved by the Monitor;
49. HUD shall consider any requests under paragraph 48 in accordance with all applicable legal requirements and principles of administrative procedure. Nothing in this Consent Decree limits HUD’s discretion in considering such requests.
50. HUD hereby lifts the “zero threshold” for all of NYCHA’s Capital Program drawdowns that was imposed on NYCHA on or about March 16, 2018, as an administrative sanction.
51. The Monitor and NYCHA shall meet with HUD to discuss strategies to improve NYCHA’s ability to comply with its obligations under this Consent Decree.
52. HUD agrees to continue providing public housing operating and capital funds to NYCHA in accordance with its rules and regulations, including the funding formulas for operating and capital funds. In accordance with these rules, regulations and formulas, HUD will not offset or reduce the formula grants by the amount of the funds the City is providing to NYCHA pursuant to this Consent Decree.
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IX. FUNDING AND RELATED PROVISIONS
53. NYCHA shall pay all reasonable fees and costs of the Monitor and the Monitorship necessary or appropriate to successfully conduct the Monitor’s responsibilities under this Consent Decree.
54. To assist NYCHA in its compliance with this Consent Decree, including NYCHA’s obligations under Performance Requirements and Plans, the City agrees to provide financial support to NYCHA for the duration of the Consent Decree, as follows:
a. to provide the capital funding to NYCHA through Fiscal Year (“FY”) 2027 reflected in Exhibit A under the heading “Capital Items,” including allocations that flow to NYCHA developments through the Department of Housing Preservation and Development. NYCHA and the Monitor shall have maximum flexibility as provided by law with respect to the projects for which these funds are utilized. Nothing in this paragraph shall be construed as authorizing the shifting of funds from a particular initiative or project to another initiative or project;
b. to provide the annual operating funds to NYCHA through FY 2027 reflected in Exhibit A under the heading “Expense Items.” NYCHA and the Monitor shall have maximum flexibility as provided by law with respect to the projects for which these funds are utilized. Nothing in this paragraph shall be construed as authorizing the shifting of funds from a particular initiative or project to another initiative or project;
c. to maintain the current practice of not seeking payments from NYCHA for payments in lieu of taxes (“PILOTS”) and police services, and to not impose new or increased payment requirements or fees on NYCHA in any other areas except for payments such as water fees imposed uniformly on New York City landlords;
d. in addition to the funding in subparagraphs (a) and (b) above, to provide a total of $1 billion in capital funding over the four fiscal years following the Effective Date of this Consent Decree; and
e. to provide each fiscal year after the first four fiscal years following the Effective Date of this Consent Decree, an additional $200 million in capital funding to NYCHA in addition to the funding in subparagraphs (a) and (b) above.
55. The City’s funding obligations under paragraph 54 shall not be reduced by any funding provided by any other sources (including Borough President or City Council funds). The City shall not setoff its obligation to pay funds under paragraph 54 against any funds that may now or in the future be due from NYCHA to the City, nor shall it exercise any right of recoupment related thereto.
56. Subject to the following paragraph 57, the capital funding pursuant to subparagraphs (d) and (e) of paragraph 54 shall be provided by the City to NYCHA as follows: the Monitor (or NYCHA at the Monitor’s direction) will submit a project description and scope
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of work to the City’s Office of Management and Budget (“OMB”). OMB shall approve this submission if the funds requested are within the dollar amounts described in subparagraphs (d) and (e) of paragraph 54. Subsequent to approval, NYCHA will submit the corresponding contracts to the City Comptroller for registration to the extent required by law. After the Comptroller registers a contract, NYCHA can pay vendors using its own funds. NYCHA will be reimbursed by the City through the Department of Housing Preservation and Development within 30 days of receiving a proper payment requisition and substantiating evidence of payment.

57. In the event that the total amount of capital funds provided by the City pursuant to subparagraphs (a), (d), and (e) of paragraph 54 have not been paid by the City to NYCHA during the time periods described in those subparagraphs, the unpaid amounts will be carried over and added to the funds available to NYCHA in the immediately following fiscal year and, to the extent unspent in the next fiscal year, shall continue to be carried over and added to each subsequent fiscal year until spent.

58. projects.

Neither the Monitor nor NYCHA shall use City capital funds for non-capital

59. All funds described in subsections (d) and (e) of paragraph 54 shall be spent only pursuant to an approved Action Plan to meet NYCHA’s obligations under the Consent Decree, and work paid for by such funds shall be performed under the direction of the Chair and General Manager subject to the terms of this Consent Decree.

60. Nothing in this Consent Decree precludes the City, at its exclusive option or as otherwise provided by law, from authorizing additional expense or capital funding for NYCHA.

61. In the event that an undue financial hardship results in the City’s financial inability to pay the full amount requested pursuant to paragraph 54, the City shall submit to the Monitor, the United States, and NYCHA within 45 days of the Monitor’s request a certification signed by the Mayor of the City and the City Comptroller setting forth that the City is unable to pay the entire amount requested, providing in detail the amount the City has the financial ability to pay (“Available Amount”) a description of the causes and extent of the undue financial hardship and an explanation as to how the Available Amount was determined. The certification shall include a date when the City will be able to make more or all the funds due available. If the City is unable to provide such a date in the certification, the City shall provide a certification every 90 days until it is able to provide a date (“Future Availability Date”) by which it will make more or all of the remaining funds available (collectively, the “Unpaid Amount”). The City will pay the Available Amount as provided in paragraph 54. If the Parties agree that there exists undue financial hardship on the part of the City, then NYCHA or the Monitor may seek a modification of applicable Action Plans pursuant to paragraph 32.

62. The Monitor, the United States, and NYCHA may object to the City’s certification, in which case the Court will decide whether, because of undue financial hardship, the City is financially unable to provide the funding as required by this Consent Decree. If the Court finds that the undue financial hardship did not occur, or that the City has the financial ability to pay some or all of the funding owed under this Consent Decree, the Court shall enter an

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appropriate order requiring payment. If no objection is filed to the certification, or if the Court rejects any objection that is filed, the City shall make the Unpaid Amount available for payment to NYCHA pursuant to paragraph 54 on before the Future Availability Date. If the Court finds undue financial hardship, the Monitor and/or NYCHA may apply to the Court for modification of applicable Action Plans pursuant to paragraph 32.
X. INSTITUTIONAL CHANGES
63. In consultation with the Monitor, NYCHA will create a Compliance Department headed by a Chief Compliance Officer. The Chief Compliance Officer shall be responsible for:
a. Overseeing NYCHA’s regulatory compliance with regard to federal, state, and local obligations.
b. Ensuring the accuracy of external reporting and statements by NYCHA.
c. Ensuring that NYCHA management and staff receive appropriate compliance training.
d. Maintaining a forum for employee, contractor, and resident complaints (including anonymous complaints) regarding compliance issues, and taking action on such complaints as appropriate.
e. Ensuring the integrity of PHAS or other inspections at NYCHA.
f. Advising the Environmental Health and Safety Officer (created pursuant to paragraph 64 below) of any information obtained by the Compliance Department that relates to environmental health and safety issues.
g. Coordinating with the Environmental Health and Safety Officer regarding issues that impact both compliance and environmental health and safety.
h. Reporting to the Monitor regarding any compliance issues identified during the term of the Consent Decree.
64. In consultation with the Monitor, NYCHA will create an Environmental Health and Safety Department headed by an Environmental Health and Safety Officer. The Environmental Health and Safety Officer shall be responsible for:
a. Analyzing, overseeing, and improving environmental health and safety at NYCHA, which shall include but not be limited to issues relating to lead-based paint, mold, heating, pests, elevators, air quality, and other aspects of NYCHA’s physical environment that affect residents’ health or safety.
b. Reporting to NYCHA’s senior management and Board on environmental health and safety issues.
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c. Making recommendations to NYCHA’s senior management and Board for improvement and correction of any environmental health and safety issues at NYCHA.
d. Communicating with the public and stakeholders regarding environmental health and safety issues, including by maintaining a forum for employee and resident complaints (including anonymous complaints) regarding environmental health and safety issues.
e. Advising the Chief Compliance Officer of any information obtained by the Environmental Health and Safety Department that relates to regulatory compliance.
f. Coordinating with the Chief Compliance Officer regarding issues that impact both compliance and environmental health and safety.
g. Ensuring the proper application of lead paint interim controls and proper abatement of lead paint.
65. In consultation with the Monitor, NYCHA shall create a Quality Assurance Unit charged with verifying the completion, timeliness, and quality of maintenance work.
XI. RELIEF COMMENCING PRIOR TO EFFECTIVE DATE OR MONITOR
66. Without waiting for the occurrence of the Effective Date of this Consent Decree, the appointment of the Monitor, or the issuance of an Action Plan, NYCHA shall take the actions set forth in paragraphs 67 to 70 below.
67. Lead-Safe Work Practices and Abatement Rule – Without waiting for the Effective Date, NYCHA shall comply in all respects with the lead-safe work practices (including training and certification, site preparation, containment, and clean-up, and notification requirements) required by 24 C.F.R. §§ 35.1120, 35.1130, 35.1345, 35.1350, 35.1355(a)(4), and 40 C.F.R. part 745, subpart E, and with the Abatement Rule, 40 C.F.R. part 745, subpart L.
68. Resident Notification – No later than 150 days after its execution of the Consent Decree, without waiting for the Effective Date, NYCHA shall notify residents in any apartment that NYCHA has identified as containing lead paint, or in any apartment in a building with common areas that NYCHA has identified as containing lead paint, of this fact, together with (a) the location of the lead paint, (b) that NYCHA has the obligation to perform interim controls, (c) a description of how to voluntarily disclose to NYCHA that a child under six resides or is expected to reside in the apartment, and (d) a request to residents to report deteriorated lead paint or failure of encapsulation or enclosure, as provided in 24 C.F.R. §§ 35.1120(c) and 35.1355(a)(7), to NYCHA and the Monitor, except that NYCHA shall provide such notification to residents in any apartment in which a child under the age of 6 resides that NYCHA has identified as containing lead paint within 90 days of execution of the Consent Decree, without waiting for the Effective Date.
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69. Lead Disclosure Rule – No later than 120 days after its execution of the Consent Decree, without waiting for the Effective Date, NYCHA shall ensure that physical copies of all materials required to be disclosed by the Lead Disclosure Rule be present, available for inspection, and permanently maintained at the management office for each development. No later than 180 days after its execution of the Consent Decree, without waiting for the Effective Date, NYCHA shall ensure that that paper or electronic copies shall be sent to each resident, that electronic copies shall be available to residents through an internet-based portal, and that electronic copies shall be available to the United States.
70. Prioritization – In responding to reports of deteriorated paint, NYCHA shall prioritize the elimination of lead paint hazards in apartments in which children under six or pregnant women reside and common areas frequented by children under six.
XII. MATTERS RESOLVED
71. This Consent Decree resolves the civil claims of the United States asserted against NYCHA in the Complaint. As to claims by the United States other than those asserted on behalf of EPA, subject to the terms of this Consent Decree, the United States releases the civil claims asserted against NYCHA in the Complaint. As to claims asserted by the United States on behalf of EPA, subject to the terms of this Consent Decree, the United States on behalf of EPA covenants not to file a civil action against NYCHA asserting the claims asserted by the United States on behalf of EPA in the Complaint.
72. The United States Attorney’s Office for the Southern District of New York (“SDNY”) agrees not to seek criminal charges against NYCHA based on the facts and omissions described in the Complaint through the Effective Date. This Consent Decree does not limit in any way SDNY’s prerogative to criminally investigate and/or criminally charge and prosecute any individual.
73. The United States reserves all legal and equitable remedies available to enforce the provisions of this Consent Decree.
74. The United States reserves the right to seek further injunctive or equitable relief under its Complaint to supplement this Consent Decree if the Monitorship fails to achieve its purposes.
75. Except as to the claims described in paragraphs 71 and 72, this Consent Decree shall not be construed to limit the rights of the United States to seek relief under the Housing Act, Anti-Fraud Injunction Act, TSCA, or under other federal laws or regulations. The United States further reserves all legal and equitable remedies to address any potential imminent and substantial endangerment to the public health or welfare or the environment arising at, or posed by, NYCHA’s conduct, whether related to the claims described in paragraphs 71 and 72 or otherwise.
76. In any subsequent administrative or judicial proceeding initiated by the United States for injunctive relief, civil penalties, or other appropriate relief against NYCHA, NYCHA shall not assert, and may not maintain, any defense or claim based upon the principles of waiver,
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res judicata, collateral estoppel, issue preclusion, claim preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the United States in the subsequent proceeding were or should have been brought in this case, except with respect to claims that have been specifically resolved pursuant to paragraphs 71 and 72.
77. This Consent Decree is not a permit, or a modification of any permit, under any federal, state, or local laws or regulations. NYCHA is responsible for achieving and maintaining complete compliance with all applicable federal, state, and local laws, regulations, and permits, and NYCHA’s compliance with this Consent Decree shall be no defense to any action commenced pursuant to any such laws, regulations, or permits, except as set forth herein. The United States does not, by its consent to the entry of this Consent Decree, warrant or aver in any manner that NYCHA’s compliance with any aspect of this Consent Decree will result in compliance with any provisions of federal, state, or local laws, regulations, or permits.
78. This Consent Decree does not limit or affect the rights of the United States against any third parties not party to this Consent Decree (including any present or former employees, officers, or board members), nor does it limit the rights of third parties, not party to this Consent Decree, against NYCHA, except as otherwise provided by law.
79. This Consent Decree shall not be construed to create rights in, or grant any cause of action to, anyone not a Party to this Consent Decree.
80. Subject to paragraphs 71 and 72, HUD and EPA reserve all of their rights under applicable law.
81. HUD specifically reserves the right to appoint, or to seek judicial appointment of, a receiver for substantial default, as well as all other administrative remedies.
XIII. FORCE MAJEURE
82. “Force Majeure,” for purposes of this Consent Decree, is defined as any event arising from causes beyond the control of NYCHA that delays or prevents the performance of any obligation under this Consent Decree despite NYCHA’s best efforts to fulfill the obligation. The requirement that NYCHA exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential Force Majeure event and best efforts to address the effects of any potential Force Majeure event (a) as it is occurring and (b) following the potential Force Majeure, such that the delay and any adverse effects of the delay are minimized. “Force Majeure” does not include NYCHA’s financial inability to perform any obligation under this Consent Decree.
83. If the United States agrees, or the Court determines, that a delay or anticipated delay is attributable to a Force Majeure event, the time for performance of the obligations under this Consent Decree that are affected by the Force Majeure event will be extended for such time as is necessary to complete those obligations in light of the Force Majeure event. An extension of the time for performance of the obligations affected by the Force Majeure event shall not, of itself, extend the time for performance of any other obligation.
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XIV. DISPUTE RESOLUTION AND COMPELLING PERFORMANCE
84. The Court shall retain jurisdiction over this case until termination of this Consent Decree, for the purpose of resolving disputes arising under this Consent Decree, entering orders modifying this Consent Decree, or effectuating or enforcing compliance with the terms of this Decree.
85. Should any dispute about the implementation of this Consent Decree arise, the Parties and the Monitor will endeavor in good faith to resolve it. If they cannot do so, they shall raise the dispute with this Court, which shall resolve it.
86. Except as otherwise provided in this Consent Decree, in any dispute before the Court NYCHA shall bear the burden of demonstrating that its position is consistent with the obligations and objectives of the Consent Decree and that accepting its position would better further the objectives of the Consent Decree than accepting any opposing position.
XV. INFORMATION COLLECTION AND RETENTION
87. The United States and its representatives, including attorneys, contractors, and consultants, will have continued access to NYCHA data and personnel to the extent necessary (in the United States’ unreviewable discretion) for oversight of implementation of the Consent Decree.
88. Until one year after the termination of this Consent Decree, NYCHA shall retain, and shall instruct its contractors and agents to preserve, all non-identical copies of all documents, records, or other information (including documents, records, or other information in electronic form) that relate in any manner to NYCHA’s performance of its obligations under this Consent Decree.
89. At the conclusion of the information-retention period provided in the preceding paragraph, NYCHA shall notify the United States at least 90 days prior to the destruction of any documents, records, or other information subject to the requirements of the preceding paragraph and, upon request by the United States, NYCHA shall deliver any such documents, records, or other information to the United States.
90. This Consent Decree in no way limits or affects any right of entry and inspection, or any right to obtain information, held by the United States (including HUD and EPA) pursuant to applicable federal laws, regulations, or permits, nor does it limit or affect any duty or obligation of NYCHA to maintain documents, records, or other information imposed by applicable federal or state laws, regulations, or permits.
91. NYCHA agrees that the United States may retain and use documents and information produced to it by NYCHA pursuant to Civil Investigative Demand or otherwise in the course of the United States’ investigation of this matter, and in particular waives any limitation on the retention or use of such documents and information contained in 28 U.S.C. § 3733.
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XVI. COSTS

92. The Parties shall bear their own costs of this action, including attorneys’ fees.

XVII. NOTICES

93. Unless otherwise specified in this Consent Decree, whenever notifications, submissions, or communications are required by this Consent Decree, they shall be made in writing and addressed as follows:

As to the United States by email:

robert.yalen@usdoj.gov monica.folch@usdoj.gov jacob.lillywhite@usdoj.gov talia.kraemer@usdoj.gov sharanya.mohan@usdoj.gov dane.m.narode@hud.gov ellis.demian@epa.gov (lead paint issues only)

As to the United States by mail:

Robert Yalen, AUSA
U.S. Attorney’s Office 86 Chambers St., 3rd Floor
New York, NY 10007

Dane Narode U.S. Department of HUD Office of General Counsel 1250 Maryland, Ave, SW, Suite 200 Washington, DC 20024

Lead Paint Team Leader US EPA Region 2 2890 Woodbridge Ave. (MS 225) Edison, NJ 08837-3679 (lead paint issues only)

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As to NYCHA by mail:

Stanley Brezenoff Interim Chair and Chief Executive Officer New York City Housing Authority 250 Broadway New York, NY 10007

Debo P. Adegbile Wilmer Cutler Pickering Hale & Dorr LLP 7 World Trade Center New York, NY 10007

As to NYCHA by email:

stanley.brezenoff@nycha.nyc.gov debo.adegbile@wilmerhale.com

As to the City:

Zachary W. Carter Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007

As to the City by email:

zcarter@law.nyc.gov

94. Any Party may, by written notice to the other Parties, change its designated notice recipient or notice address provided above.

XVIII. EFFECTIVE DATE

95. The Effective Date of this Consent Decree shall be the date upon which the Court enters the Consent Decree or a motion approving the Consent Decree, whichever occurs first, as recorded on the Court’s docket; provided, however that NYCHA agrees that it is bound to perform the actions described in paragraphs 67 to 70 after the execution of this Consent Decree without waiting for the occurrence of the Effective Date.

XIX. MODIFICATION

96. The terms of this Consent Decree may be modified only by a subsequent written agreement signed by the Parties. To the extent that the Parties propose to modify paragraphs 54 through 62, the City must also sign such document.

XX. TERMINATION

97. After a minimum of five years from the Effective Date, any Party may petition the Court to terminate the Consent Decree, and the Consent Decree shall be terminated upon the Court’s determination that (1) NYCHA has been in substantial compliance with all of its obligations (including but not limited to the requirements in paragraph 18, Performance Requirements, and Action Plans) under the Consent Decree for at least the prior twelve months;

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and (2) NYCHA is willing and able following termination to continue to comply with the Performance Requirements and applicable law.
98. The obligations under this Consent Decree with respect to lead, mold, heat, elevators or pests may be terminated by Court order, after a minimum of five years from the Effective Date, if (1) NYCHA and the United States consent or (2) the Court determines that (a) there has been substantial compliance with that portion of the Consent Decree (including but not limited to applicable requirements in Paragraph 18, Performance Requirements, and Action Plans) for a period of 12 months, and (b) NYCHA is willing and able to continue to comply with the Performance Requirements and applicable law related to such portion of the Consent Decree (“Partial Termination”).
99. No earlier than six months after a Partial Termination, the Monitor or any Party may petition the Court during the term of the Consent Decree for reinstatement of any obligations terminated pursuant to paragraph 98. The Court may reinstate terminated obligations only if the petitioning Party or the Monitor establishes that there has been material degradation in NYCHA’s compliance with the terminated obligations since the Partial Termination.
XXI. SIGNATORIES/SERVICE
100. Each undersigned representative of NYCHA, the United States, and the City certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Decree.
101. This Consent Decree may be signed in counterparts, and its validity shall not be challenged on that basis. NYCHA agrees to accept service of process by e-mail or mail with respect to all matters arising under or relating to this Consent Decree and to waive the formal service requirements set forth in Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not limited to, service of a summons.
XXII. INTEGRATION
102. This Consent Decree constitutes the final, complete, and exclusive agreement and understanding among the Parties with respect to the settlement embodied in the Decree and supersedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein. The Parties and the City acknowledge that there are no representations, agreements, or understandings relating to the settlement other than those expressly contained in this Consent Decree.
XXIII. FINAL JUDGMENT
103. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment of the Court. The Court finds that there is no just reason for delay and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.
22

Case 1:18-cv-05213-WHP Document 5-1 Filed 06/11/18 Page 25 of 29 SO ORDERED this day of __________, 2018: __________________________________ UNITED STATES DISTRICT JUDGE
23

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Case 1:18-cv-05213-WHP Document 5-1 Filed 06/11/18 Page 27 of 29

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Case 1:18-cv-05213-WHP Document 5-1 Filed 06/11/18 Page 29 of 29
Exhibit A to Consent Decree

New York City Housing Authority
FY18-FY27 Expense & Capital (Mayoral Only)
On the City Fiscal Year

Forgone Payments Expense Items Capital GRAND TOTAL

Funding

FY18

FY19

FY20

FY21

FY22

FY23

FY24

FY25

FY26

FY27

TOTAL FY18-FY27

Forgone Revenue $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 105,450,000 $ 1,054,500,000

City Tax Levy

$ 127,424,609 $ 123,768,582 $ 124,365,233 $ 114,720,995 $ 114,761,919 $ 73,307,856 $ 73,307,856 $ 73,307,856 $ 73,307,856 $ 73,307,856 $ 971,580,618

Capital

$ 483,236,000 $ 423,575,000 $ 179,122,000 $ 86,000,000 $ 136,000,000 $ 136,000,000 $ 136,000,000 $ 136,000,000 $ 136,465,000 $ 137,944,000 $ 1,990,342,000

$ 716,110,609 $ 652,793,582 $ 408,937,233 $ 306,170,995 $ 356,211,919 $ 314,757,856 $ 314,757,856 $ 314,757,856 $ 315,222,856 $ 316,701,856 $ 4,016,422,618

*This table breaks out NYCHA's budget as of 5/10/18. Capital will be reforecast every fiscal year to account for what NYCHA has actually committed. The remaining funding is rolled to the following fiscal year or subsequent fiscal years.

 
 Case 1:18-cv-05213-WHP Document 64 Filed 11/14/18 Page 1 of 52

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA, Plaintiff,
-againstNEW YORK CITY HOUSING AUTHORITY,
Defendant.

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18cv5213

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OPINION & ORDER

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WILLIAM H. PAULEY III, Senior United States District Judge:

The United States of America (the “Government”) moves for approval of a

proposed consent decree touted by the parties to bring organizational reform to the New York

City Housing Authority (“NYCHA”) and correct its systemic violations of federal health and

safety regulations. On September 26, 2018, scores of NYCHA tenants, elected officials, and

representatives of community organizations appeared for a fairness hearing to assist this Court in

assessing the proposed decree. One after another, they rendered harrowing accounts of the

squalid conditions in their apartments and the indifference of NYCHA management, called for

the firing or prosecution of NYCHA officials, and urged greater tenant participation in the

negotiation and enforcement of the proposed consent decree. Two of these community

organizations, the City-Wide Council of Presidents and At-Risk Community Services (the

“Intervenors”), also filed formal opposition briefs.

This human dimension cannot be ignored despite the parties’ attempts to limit the

Court to a perfunctory review of the validity and form of the settlement. For decades, Congress

has addressed the importance of ensuring that public housing residents live in decent, safe, and

Case 1:18-cv-05213-WHP Document 64 Filed 11/14/18 Page 2 of 52
sanitary conditions. Congress vested the U.S. Department of Housing and Urban Development (“HUD”) with broad authority and responsibility to monitor the performance of public housing agencies receiving federal funds and to aggressively reform those agencies that misuse them. But the parties’ proposed decree sidelines HUD and displaces the congressional framework for remedying public housing failures with a parallel framework to be managed by the judiciary. And aside from general directives to comply with applicable statutes and regulations, the proposed decree does not offer any specificity as to NYCHA’s required or enjoined conduct. Rather, it contemplates the future elaboration of the terms of the injunction through the development of performance requirements and plans. These performance requirements and plans are not subject to this Court’s approval, but will be developed by a monitor, approved by the Government, and subject to judicial review only under an arbitrary and capricious standard.
Because the record reveals a substantial basis to conclude that this proposed decree is not fair, reasonable, or consistent with the public interest, the Government’s motion to approve the consent decree is denied.
BACKGROUND This case is about the disastrous human toll resulting from a complete bureaucratic breakdown of the largest public housing agency in the United States. NYCHA’s stated mission is to provide safe, decent, and affordable housing for the 400,000 or more lowand moderate-income New Yorkers who live in approximately 175,000 apartments in 326 housing developments. NYCHA’s reported population alone places it within the fifty most populous cities in the Nation. But NYCHA’s size is paralleled by its organizational disarray in providing any semblance of adequate housing for some of the most vulnerable members of
2

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society and its systemic cover-up of a host of fundamental health and safety issues.1 More than two years ago, the Government began investigating NYCHA’s violations of federal health and safety requirements and its deception of federal regulators as to its compliance with those requirements. The breathtaking scope of NYCHA’s deficiencies came into public focus through the accretion of media scrutiny, the high-profile departures of some of NYCHA’s top leadership, and federal and state court class actions by NYCHA’s own tenants to remedy some of the same housing conditions at issue in this action.
On June 11, 2018, the Government’s investigation culminated in the filing of a complaint and proposed settlement (the “Complaint” and “Proposed Consent Decree”). The Complaint, which seeks the appointment of a monitor and other injunctive relief, asserts three claims against NYCHA. First, the Government claims that NYCHA substantially defaulted on its covenants and obligations under its “Annual Contributions Contract” with HUD, which incorporates federal lead-paint safety regulations and NYCHA’s obligation under 24 C.F.R. § 5.703 to provide “decent, safe, and sanitary housing.” (Compl., ECF No. 11, ¶¶ 268-271 (citing 42 U.S.C. § 1437d(j)(3)).) Second, it asserts a claim under the federal Anti-Fraud Injunction Act to enjoin NYCHA’s ongoing or imminent false statements to federal regulators about its housing conditions and its compliance with federal law in violation of 18 U.S.C. § 1001. (Compl. ¶¶ 272-276 (citing 18 U.S.C. § 1345).) Finally, the Government brings a claim under the Toxic Substances Control Act of 1976 to restrain NYCHA’s failure to comply with federal lead-based paint regulations. (Compl. ¶¶ 277-282.)

1

The plight of one tenant typifies NYCHA’s beadledom. At the September 26, 2018 hearing, she described

the trauma and heartbreak that overwhelmed her every day when she entered and exited the apartment building

where her 16-year-old son was murdered in November 2017. (See Sept. 26, 2018 Hr’g Tr. at 92-94.) For more than

ten months, she sought to be transferred to another building without success. In a personal note postmarked October

22, 2018, the tenant informed this Court that NYCHA moved her to a new apartment. (See ECF No. 63.) While this

Court commends NYCHA for acting expediently after the hearing, it should not take a public admonishment from a

federal judge to spur NYCHA to perform an act of basic human decency.

3

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Because the determination of whether the Proposed Consent Decree should be approved requires an examination of the terms of the settlement and the claims brought in this action, a brief overview is warranted. I. The Complaint
This action may present the rare instance in which the allegations in the complaint are understated. As the Complaint alleges, and as numerous tenants testified from first-hand knowledge, NYCHA’s apartments and buildings are literally falling apart—and NYCHA knows it. In March 2018, the New York State Department of Public Health found that 83% of inspected units contained some condition that could pose a health hazard to tenants. (Compl. ¶ 161.) Somewhat reminiscent of the biblical plagues of Egypt, these conditions include toxic lead paint, asthma-inducing mold, lack of heat, frequent elevator outages, and vermin infestations.
A. Lead Paint Contrary to NYCHA’s public assurances that lead paint was not widely used in
NYCHA and that the vast majority of its developments did not have lead paint, the Government alleges that NYCHA’s own documents reveal that more than half of NYCHA’s developments contain lead paint somewhere. (Compl. ¶¶ 54-56.) At minimum, NYCHA’s assertions indicate that roughly 51,000 apartments in at least 1,200 buildings in at least 92 developments have lead paint on their walls, floors, ceilings, windows, doors, radiators, or pipes.2 (Compl. ¶¶ 54, 57.) Approximately 173,000 residents, of which 11,500 are children under 6, live in these 92 developments. (Compl. ¶ 57.) But these numbers are only the tip of the iceberg—City and New York State health inspections have identified lead paint in developments that NYCHA previously

2

As of October 30, 2018, NYCHA’s estimate of apartments to be inspected for lead paint increased to

140,000 of its 175,000 apartments, as reported by the media. See Greg B. Smith, Oops! NYCHA suddenly

discovers 10,000 more lead-paint apartments it needs to inspect, N.Y. Daily News (Oct. 30, 2018),

http://www.nydailynews.com/new-york/ny-metro-nycha-lead-paint-more-apartments-20181030-story.html.

4

Case 1:18-cv-05213-WHP Document 64 Filed 11/14/18 Page 5 of 52
declared to be lead free. (Compl. ¶ 56.) Despite the prevalence of lead paint in NYCHA’s apartments, NYCHA
inexplicably failed to conduct required inspections and evaluations for years. For instance, NYCHA conducted less than 25% of the biennial risk assessment evaluations it should have conducted in the 92 developments with lead paint between 2010 and 2017. (Compl. ¶ 60.) For 50 of these 92 developments, NYCHA failed to conduct a single evaluation during that period. (Compl. ¶ 60.) NYCHA’s senior management knew that these evaluations were not being conducted as early as 2011. (Compl. ¶ 95.) Even where NYCHA found a child with elevated blood lead levels who lived in a development previously determined to be lead free, it still—in defiance of all common sense—did not conduct risk assessments of that development. (Compl. ¶¶ 78-79.) Further, NYCHA simply stopped performing legally required annual visual assessments for lead paint hazards in 2012. (Compl. ¶¶ 64-67.) NYCHA’s senior management allegedly knew that these assessments were not being conducted as early as 2013. (Compl. ¶ 96.) Although NYCHA partially restarted inspections in May 2016, the 4,000 visual assessments it conducted generated 3,900 work orders to abate lead paint hazards. (Compl. ¶¶ 66-67.) When extrapolated, this rate of work orders underscores the prevalence of lead paint hazards in NYCHA housing. (See Compl. ¶ 68 (alleging that more than 80% of the 9,000 apartments inspected in 2017 contained potential lead paint hazards).) And when NYCHA did perform maintenance work, the majority of that work was performed by employees who did not have proper training in lead-safe work practices and did not safely abate lead paint hazards. (Compl. ¶¶ 70-75, 80.) This, too, was known to NYCHA’s management. (Compl. ¶¶ 99-100.)
Importantly, these statistics underscore the tangible impact of NYCHA’s apathy on residents. Lead is toxic to all humans. (Compl. ¶¶ 31-32.) Even small amounts of lead may
5

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lead to cancer, hypertension, kidney failure, and other serious health conditions. (Compl. ¶ 32.) Young children who unwittingly ingest even small amounts of lead paint flakes and lead dust may suffer irreversible neurological problems.3 (Compl. ¶ 32.) The Government alleges that between 2010 and 2016, the City’s Department of Health confirmed that at least 19 children had elevated blood lead levels while living in lead-riddled apartments. (Compl. ¶¶ 82-85.) Despite senior management’s knowledge, NYCHA refused to provide any information or report these cases to HUD. (Compl. ¶¶ 76-77, 101.) Moreover, as the Complaint alleges, this number massively understates the actual number of children afflicted with elevated blood lead levels for at least two reasons.4 (See Compl. ¶ 82.) First, NYCHA employed an obstructionist and counterintuitive policy of immediately contesting every order by the Department of Health to abate lead paint following an inspection. (Compl. ¶ 85.) These challenges often resulted in the Department of Health’s retraction of findings of lead paint and withdrawal of abatement orders, rendering under-counting all but certain. (Compl. ¶¶ 84-87.) Second, only a subset of children for whom exposure to lead paint could cause deleterious health effects were tested for elevated blood lead levels. (Compl. ¶ 88.) As a NYCHA spokesperson intimated in a July 29, 2017 press release, even one child with elevated lead levels is one too many.
B. Mold, Heat, Elevators, and Vermin Endemic mold, insufficient heat during the wintertime, broken elevators, and

3

A recent policy statement published by the American Academy of Pediatrics’ Council on Environmental

Health confirms that there is no safe level of lead in blood and that even blood lead concentrations below 5 μg/dL

(50 ppb) are “a causal risk factor for diminished intellectual and academic abilities, higher rates of neurobehavioral

disorders,” and lower birth weight in children. The authors also note that no effective treatments exist to

“ameliorate the permanent developmental effects of lead toxicity.” Bruce Perrin Lanphear, et al., Prevention of

Childhood Lead Toxicity, 138 Pediatrics, no. 1, 2016, at 1.

4

The City later revealed that since 2012, a total of 1,160 children under the age of 18 living in NYCHA

housing had elevated blood lead levels. See Luis Ferré-Sadurní, Little Decline in Number of Children in Public

Housing With High Lead Levels, Report Says, N.Y. Times (Aug. 30, 2018), https://www.nytimes.com/2018/08/30/

nyregion/nyc-public-housing-lead.html.

6

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infestations of rats, mice, and cockroaches are also a part of daily life for NYCHA tenants.5 (Compl. ¶¶ 159-160.) Between 2013 and 2016, for example, NYCHA tenants made between 18,000 and 28,000 complaints about mold growth every year. (Compl. ¶ 164.) During that same period, tenants lodged between 117,000 and 146,000 complaints each year about flooding and leaks, which contribute to mold growth. (Compl. ¶ 166.) These annual numbers of complaints are increasing. (Compl. ¶¶ 164, 166.) And even where NYCHA claims to have addressed mold, it reoccurs 30% of the time.6 (Compl. ¶¶ 171, 176.) Similarly, the 825,000 heating complaints that NYCHA’s tenants made between 2011 and 2016 bear testament to its widespread and persistent inability to provide sufficient heat during frigid New York winters. (Compl. ¶¶ 177186.) For example, during the winter of 2015-2016, roughly 43,000 residents made over 155,000 complaints of insufficient heat. (Compl. ¶ 181.) Two years later, more than 323,000 residents—or over 80% of NYCHA’s population—suffered heating outages lasting an average of 48 hours.7 (Compl. ¶ 183.)
As for NYCHA’s elevators, the Government alleges that NYCHA experienced an average of 94 outages per elevator between 2011 and 2016. (Compl. ¶ 188.) In 2016, nearly

5

These conditions do not tell the whole story. For instance, the Complaint also alleges that NYCHA failed

to inspect smoke and carbon monoxide detectors in its apartments and that the majority of NYCHA’s playgrounds

were found to contain hazardous conditions. (Compl. ¶ 161.) At the September 26, 2018 hearing, a representative

of the New York Environmental Law & Justice Project described how arsenic from the City Department of Health’s

rat-control efforts, along with lead, contaminates the soil around NYCHA buildings at the Governor Alfred E. Smith

Houses just one block from the Daniel Patrick Moynihan U.S. Courthouse. He testified that the children were

moved to an adjacent playground in which the City’s Department of Parks & Recreation was observed using Round-

Up to kill weeds, which itself becomes more toxic when combined with heavy metals. (Sept. 26, 2018 Hr’g Tr. at

118-19.)

6

Many of these issues are the subject of a 2013 class action brought by NYCHA tenants suffering from

asthma as a result of mold and excessive moisture in their apartments. See Baez v. N.Y.C. Hous. Auth., 2015 WL

9809872 (S.D.N.Y. Dec. 15, 2015).

7

Media outlets recently reported that 35,475 tenants have already endured insufficient heat or hot water

since October 18, 2018—and winter has not yet arrived. See, e.g., Yoav Gonen & Georgett Roberts, Over 35K

NYCHA residents are suffering without heat, hot water, N.Y. Post (Oct. 24, 2018), https://nypost.com/2018/10/24/

over-35k-nycha-residents-are-suffering-without-heat-hot-water.

7

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70% of buildings with at least one elevator had no working elevators at some time—an occurrence apparently so common that NYCHA refers to it by the colloquialism “doubleheader.” (Compl. ¶¶ 190, 193.) Finally, cockroaches, mice, and rats are legion in NYCHA housing. Between 2010 and 2016, NYCHA tenants lodged over 280,000 complaints about cockroaches, more than 130,000 complaints about mice, and almost 15,000 complaints about rats—numbers that are also increasing. (Compl. ¶¶ 200, 202.)
These statistics, while helpful in understanding the scope of NYCHA’s failures, are given meaning by the toll that these physical conditions take on NYCHA residents. Mold may release toxins and allergens correlated with respiratory problems, contributing to NYCHA residents’ disproportionate rate of asthma hospitalizations and forcing tenants to remove sheets of mold themselves. (Compl. ¶¶ 165, 172.) Frigid apartments give tenants no choice but to leave their stoves and ovens on all night for heat. (Compl. ¶ 184.) Broken elevators trap residents for hours, put the elderly and disabled to the dilemma of waiting in lobbies or clambering up flights of stairs, and tragically, sometimes kill NYCHA residents. (Compl. ¶¶ 191-197.) And plainly, pests can carry disease, exacerbate respiratory conditions, and contaminate food and water. (Compl. ¶ 203.) While aware of these conditions, NYCHA ignored tenant complaints or only nominally addressed them because of incompetence or apathy. (See Compl. ¶¶ 166-168, 175-176 (describing NYCHA’s closing of mold work orders without remediation); Compl. ¶ 186 (alleging NYCHA management’s awareness of insufficient heat); Compl. ¶¶ 192-195 (alleging NYCHA’s management’s awareness of broken elevators); Compl. ¶¶ 204-210, 212-214 (detailing NYCHA’s practices of arbitrarily closing out work orders or faking exterminations by spraying water).)
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C. NYCHA’s Deception The Complaint alleges more than NYCHA’s callous indifference to the well-
being of its tenants, but that it whitewashed these deficiencies for years. According to the Government, NYCHA’s deception was entrenched within its culture, from top-level management downward. In March 2016, for example, NYCHA’s Chair testified before the New York City Council that NYCHA regularly performed visual assessments of lead paint as legally required. (Compl. ¶ 111.) Despite learning in April 2016 that NYCHA did not perform these visual assessments, NYCHA’s Chair did nothing. (Compl. ¶ 97.) The false testimony by NYCHA’s Chair is emblematic of NYCHA’s pattern of deceiving anyone who it needed to falsely assure, whether it be elected officials, NYCHA’s tenants, the general public, or HUD. (See Compl. ¶¶ 103-117.) Indeed, between 2010 and 2016, NYCHA falsely certified its compliance with HUD’s lead-paint safety regulations and its obligation to provide “decent, safe, and sanitary” housing in certifications submitted to HUD, amendments to its Annual Contributions Contract with HUD, and in drawing down operating funds provided by HUD. (Compl. ¶¶ 92, 241-264.)
NYCHA also lied to HUD and the public to allay concerns over a work order backlog spinning out of control. Between 2010 and 2012, NYCHA faced mounting pressure from HUD and criticism from the media to address its backlog of 400,000 work orders, which the media blamed as the source of NYCHA’s decaying apartments. (Compl. ¶¶ 215-220.) As of August 2012, NYCHA was on pace to exceed the 170,000 work orders that its 2011 inspections had generated. (Compl. ¶ 221.) Thus, it sought to engineer a backlog reduction. First, it suspended annual inspections between August 2012 and the summer of 2014. (Compl. ¶¶ 221228.) Even though some of its executives expressed misgivings that a lengthy moratorium on inspections would run afoul of its obligations under the U.S. Housing Act of 1937, those
9

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concerns went unaddressed. (Compl. ¶ 225.) This scheme allowed NYCHA to move 200,000 work orders off its books during the suspension. (Compl. ¶ 226.) Second, in February 2013, NYCHA revived a policy allowing staff to close work orders by reporting that the tenant was not home. (Compl. ¶¶ 233-235.) NYCHA’s executives explicitly made this change to reduce the number of open work orders, which allowed them to close another 200,000 work orders in 2013. (Compl. ¶¶ 233-234.) Nonetheless, NYCHA triumphantly—but falsely—claimed to HUD and the public that it reduced its backlog based on initiatives to improve efficiency and productivity. (Compl. ¶¶ 229-232, 236-240.)
Finally, NYCHA sought to game HUD’s public housing inspection system in order to avoid the additional scrutiny that came with low inspection scores, including more frequent inspections, corrective action plans, and the potential of a federal receivership. (See Compl. ¶¶ 121-132.) These inspections evaluate four “indicators” of a public housing agency’s performance—physical conditions, financial condition, management, and capital funding. See 24 C.F.R. part 902 subpart A. A public housing agency receives an overall score, as well as separate scores for each indicator. 24 C.F.R. §§ 902.9, 902.11. In stark contrast to its lethargic attitude when it came to the health and safety of its tenants, NYCHA approached its inflation of HUD inspection scores with tactical precision and a take-no-prisoners approach. (See Compl. ¶ 156.)
On the eve of inspections, NYCHA transformed its developments into veritable Potemkin villages. The Complaint alleges that NYCHA’s management circulated dossiers on individual inspectors so that its staff could identify and patch over specific conditions that certain inspectors were known to scrutinize. (Compl. ¶¶ 133-135.) And during inspections, NYCHA staff raced ahead of inspectors to address any unforeseen deficiencies. (Compl. ¶¶ 153-155.)
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NYCHA also employed a panoply of stratagems designed to temporarily conceal the crumbling physical conditions of its housing. These practices, which NYCHA’s management knew about or actively directed, included (1) temporarily shutting off a building’s water supply to hide water leaks; (2) plugging holes in walls and ceilings with newspaper and cork before painting over the hole; (3) building fake walls to conceal broken doors and dilapidated rooms; (4) locking doors and posting “danger” signs to keep inspectors away from rooms with dangerous or unsanitary conditions; and (5) hiding improperly stored hazardous materials. (See Compl. ¶¶ 137-148.) Remarkably, NYCHA indoctrinated its staff in these deceptive tactics through internal guidelines, including the decade-long distribution of a “Quick Fix Tips” guide on how to conceal problematic conditions from HUD inspectors. (Compl. ¶¶ 149-152.) II. The Proposed Consent Decree
The Proposed Consent Decree is the product of months of negotiations among the Government, NYCHA, and the City of New York,8 all of whom are signatories to the agreement. In broad strokes, the proposed decree contains factual admissions by NYCHA, provisions regarding the selection of a monitor and the monitor’s powers and responsibilities, provisions for funding by the City, and provisions for injunctive relief.
A. Factual Admissions Under the Proposed Consent Decree, NYCHA admits that between 2010 and
2016, it falsely certified its compliance with federal statutory and regulatory requirements— including those relating to lead paint safety—to HUD. (Proposed Consent Decree ¶ 7(a)-(c).) NYCHA also admits that its inspections revealed that lead paint exists on the premises of more than half of its developments, including in the apartments of 92 developments. (Proposed

8

While the City is a signatory to the Proposed Consent Decree, the Government did not name it as a

defendant in the action.

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Case 1:18-cv-05213-WHP Document 64 Filed 11/14/18 Page 12 of 52
Consent Decree ¶ 7(d).) These admissions also indicate that in the first half of this decade, NYCHA failed to conduct legally required lead paint risk assessment evaluations or visual assessments, failed to ensure that its staff use lead-safe work practices, and failed to provide HUD with any information regarding children living in NYCHA developments found to have elevated blood lead levels. (Proposed Consent Decree ¶ 7(e)-(h).)
Similarly, NYCHA makes admissions regarding many of the appalling conditions of its apartments. These include 300 cases between 2014 and 2016 in which NYCHA staff verified mold growth covering more than 100 square feet and a mold reoccurrence rate exceeding 30%; 825,000 complaints of insufficient heat between 2011 and 2016; the loss of heat for 80% of NYCHA’s residents during the winter of 2017-2018; the majority of NYCHA elevator buildings experiencing at least one period with no functioning elevators in 2016; and more than 260,000 work orders for roaches, more than 90,000 work orders for mice, and nearly 36,000 work orders for rats between 2013 and 2016. (Proposed Consent Decree ¶ 7(i)-(q).) And despite these conditions, NYCHA admits that it reported to HUD between 2012 and 2013 that it had made significant progress in reducing its work order backlog, while obscuring the fact that it generated substantially fewer work orders by suspending annual inspections. (Proposed Consent Decree ¶ 7(r).) Finally, the Proposed Consent Decree contains admissions that NYCHA artificially inflated its HUD inspection scores, including through its distribution of a list of “Quick Fix Tips” to deceive HUD inspectors. (Proposed Consent Decree ¶ 7(s)-(u).)
B. Monitor Provisions The Government characterizes the monitorship as the “centerpiece” of the
Proposed Consent Decree. Even though the Government suggests that the direction NYCHA’s obligations may take will depend on who the monitor is, it still—more than five months after
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filing the proposed decree—has not identified any candidate who it might nominate to be the monitor. (See July 10, 2018 Hr’g Tr. at 8 (statement by Government counsel that applicants for monitor may “have different ideas and structures for what they would bring to that process”).) Thus, this Court’s evaluation of whether the Proposed Consent Decree should be approved must necessarily occur with incomplete knowledge of its key monitorship component.9
In any event, the monitor will be proposed by the Government in consultation with the City and NYCHA and—at the Government’s discretion—with stakeholders such as New York State, the New York City Council, the City-Wide Council of Presidents, and other tenant groups. (Proposed Consent Decree ¶ 15.) The monitor is subject to this Court’s supervision as an officer of the court. (Proposed Consent Decree ¶ 40.) NYCHA bears the burden of paying “all reasonable fees and costs” of the monitor. (Proposed Consent Decree ¶ 53.) The proposed decree provides no cap on the costs of the proposed monitorship, and the Government could not offer any estimate, recognizing only that “it will be a substantial amount of money” that “is hard to estimate until the monitor is in place.” (See July 10, 2018 Hr’g Tr. at 8-9.)
Ultimately, the monitor’s purpose is to “ensure that NYCHA (1) complies with all Lead Paint Laws, (2) provides housing that is decent, safe, sanitary, and in good repair, . . . (3) does not make false or misleading statements to the United States, and (4) implements the terms of the Consent Decree.” (Proposed Consent Decree ¶ 14.) To that end, the Proposed Consent Decree requires the monitor to ensure that NYCHA complies with federal, state, and local lead

9

The same day that this Court issued an order scheduling a status conference for July 10, 2018, the U.S.

Attorney’s Office announced its NYCHA monitor application process and fixed July 11, 2018 as the deadline for

monitor applications to be received. At the July 10, 2018 conference, this Court scheduled a fairness hearing for

September 26, 2018. The following day, the Government extended the monitor application deadline to September

12, 2018. On September 12, 2018, the Government again extended the time to submit a monitor application—this

time, to the date this Court approves the Proposed Consent Decree.

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paint laws, including EPA and HUD regulations relating to lead-paint inspections, work practices, and disclosures. (Proposed Consent Decree ¶ 18(a).) Similarly, the monitor must ensure that NYCHA complies with HUD health and safety standards relating to mold, heating, elevators, and pests. (Proposed Consent Decree ¶ 18(b)-(e).) To address NYCHA’s false or misleading statements to federal regulators, the Proposed Consent Decree requires NYCHA to consult with the monitor to create a Compliance Department, a Quality Assurance Department, and an Environmental Health and Safety Department. (Proposed Consent Decree ¶¶ 18(g), 6365.)
The Proposed Consent Decree contemplates the future development and implementation of frameworks to assist NYCHA in achieving compliance with the requirements set forth in paragraph 18(b)-(f). Performance Requirements are “objective quantitative benchmarks” to be developed by the monitor, in consultation with NYCHA and the City, and approved by the Government. (Proposed Consent Decree ¶¶ 13(p), 23.) After a Performance Requirement becomes effective, NYCHA and the monitor must prepare an Action Plan that includes “specific actions” to bring NYCHA into compliance with the Performance Requirement and paragraph 18’s mandates, “a date certain” to satisfy those requirements, and “interim milestones with specific completion dates.” (Proposed Consent Decree ¶ 27.) Action Plans may also provide for policies, procedures, systems, or structures for NYCHA to adopt to comply with the decree. (Proposed Consent Decree ¶ 34.) Apart from Action Plans, NYCHA must also work with the monitor to develop an Operational Plan that “clearly delineat[es]” the respective spheres of NYCHA’s Chair, General Manager, and Board, as well as an Organizational Plan directed toward implementing changes to NYCHA’s structure. (Proposed Consent Decree ¶¶ 28, 29.)
To assist in achieving the goals of the monitorship, the Proposed Consent Decree
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permits the monitor full access to NYCHA’s documents, data, and other information. (Proposed Consent Decree ¶ 19.) The decree also grants the monitor full access to NYCHA’s services, programs, facilities, and premises. (Proposed Consent Decree ¶ 19.) Additionally, the monitor may communicate with NYCHA’s personnel without any prior notice to or permission by NYCHA. (Proposed Consent Decree ¶ 20.) The monitor may also engage any third parties at its discretion to assist in performing its responsibilities. (Proposed Consent Decree ¶ 17.) Finally, the monitor may seek “extraordinary relief” from this Court, “including the authority to enter into contracts on NYCHA’s behalf,” upon a showing of “compelling evidence” that NYCHA’s inability to comply with an Action Plan frustrates the purpose of the proposed decree. (Proposed Consent Decree ¶ 37.)
Evaluation of the monitor and NYCHA’s progress occurs through reporting and feedback mechanisms. The monitor must submit a quarterly report to the Government, NYCHA, and this Court setting forth the work performed by the monitor and NYCHA’s progress and compliance. (Proposed Consent Decree ¶¶ 41-44.) After the Proposed Consent Decree has been in place for five years, these periodic reports must also assess whether NYCHA meets the requirements for termination of the decree. (Proposed Consent Decree ¶¶ 43, 97.) Separately, NYCHA community leaders and representatives may provide feedback through a Community Advisory Committee that meets at least twice a year to discuss the achievement of the monitorship’s purposes and to advise the monitor on the prioritization of projects. (Proposed Consent Decree ¶ 21.) Outside of the Community Advisory Committee, the monitor must also formulate procedures through which residents and other NYCHA stakeholders may provide input. (Proposed Consent Decree ¶ 22.)
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C. Funding To assist NYCHA in complying with the Proposed Consent Decree and the to-be-
determined Performance Requirements and plans, the City commits to providing almost $3 billion in previously budgeted capital and expense funding, as well as an additional $1 billion in capital funding over the next four years and $200 million in capital funding each subsequent year.10 (Proposed Consent Decree ¶ 54.) If the City fails to furnish the capital funds during the period prescribed in paragraph 54, those funding obligations will be carried over to the next fiscal year. (Proposed Consent Decree ¶ 57.) Similarly, capital funds that NYCHA fails to spend will be “carried over and added to each subsequent fiscal year until spent.” (Proposed Consent Decree ¶ 57.) Unbelievably, despite NYCHA’s $31.8 billion capital needs deficit and its widely publicized heating crisis last winter,11 the Government attests that NYCHA already left unspent roughly $377 million of the $483 million in capital funding provided by the City for fiscal year 2018, which will be carried over into fiscal year 2019. (Declaration of Monica P. Folch in Support of the United States’ Motion to Enter the Proposed Consent Decree, ECF No. 45 (“Folch Decl.”), ¶ 3.)
These funding provisions are somewhat malleable. With respect to the City’s funding obligations, the City retains the option to authorize additional capital or expense

10

While these sums are not insignificant, they pale in comparison to NYCHA’s estimated $31.8 billion in

unmet capital needs. To put such a lofty figure in more understandable terms, NYCHA’s capital needs amount to an

expenditure of over $180,000 per apartment. But even assuming that the proposed decree lasts through fiscal year

2027 (the final year for which the City had previously allocated capital funding), the City’s funding would only

cover roughly $23,000 of each apartment’s unmet capital needs. At the rate of the City’s funding obligation—which

is the only committed source of capital funds in the Proposed Consent Decree—NYCHA’s current capital needs

would not be met until the year 2166. This estimate also assumes that NYCHA’s housing stock will not deteriorate

further over the next 148 years.

11

On October 18, 2018, the Mayor announced that boilers in twelve NYCHA developments had been

replaced since last winter and that NYCHA was ready to deploy five mobile boilers for heating emergencies. This

Court wonders how many other boilers could have been replaced if NYCHA had committed some of the $377

million it left on the table.

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spending to NYCHA, although the City’s counsel confirmed that the City had no plans to allocate additional funding at present. (Proposed Consent Decree ¶ 60; Sept. 26, 2018 Hr’g Tr. at 188.) However, the Proposed Consent Decree also sets forth procedures for the City to delay or be relieved by this Court of its funding obligations in the event of undue financial hardship that renders it unable to pay some or all of the amounts prescribed in paragraph 54. (Proposed Consent Decree ¶¶ 61-62.) Moreover, the proposed decree notes that $550 million in state resources “may be available,”12 in addition to ongoing operating and capital funds from HUD, which will not be offset by the amount that NYCHA is slated to receive from the City.13 (Proposed Consent Decree ¶¶ 38, 52; see Compl. ¶ 18 (alleging that roughly $900 million of NYCHA’s operating budget comes from HUD and that HUD provides over $300 million per year in capital funding).)
D. Injunctive Relief The Proposed Consent Decree requires NYCHA to take certain specified actions
without waiting for the effective date of the proposed decree, the appointment of a monitor, or the issuance of an Action Plan. (Proposed Consent Decree ¶ 66.) For instance, NYCHA must comply with HUD and EPA regulations relating to lead-safe work practices and abatement. (Proposed Consent Decree ¶ 67.) Under the Proposed Consent Decree, NYCHA must also take steps to notify residents of lead paint to which they may be exposed. In particular, NYCHA must notify residents if their apartments or common areas in their buildings have been identified

12

Of course, this observation says nothing about whether these funds will in fact be released, and the State of

New York is not a signatory bound by the proposed decree. The parties’ agreement that the $550 million in state

resources “are important to the success of [the Proposed Consent Decree]” is similarly aspirational. (Proposed

Consent Decree ¶ 38.)

13

The City expressed concern that HUD might reduce its capital funding contribution to NYCHA if HUD

included the City’s funding under the Proposed Consent Decree in its funding formula. This “very technical”

provision was included to ensure that HUD could not do so. (Sept. 26, 2018 Hr’g Tr. at 200-01.)

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as containing lead paint no later than November 8, 2018—or if a child under 6 resides in such an apartment, no later than September 9, 2018. (Proposed Consent Decree ¶ 68.) Finally, NYCHA must keep at each development’s management office physical copies of all materials required to be disclosed by HUD and EPA’s lead-disclosure regulations. (Proposed Consent Decree ¶ 69.) Those materials must be present and available for inspection no later than October 9, 2018 and must be sent to each resident no later than December 8, 2018. (Proposed Consent Decree ¶ 69.) To date, this Court has not received any update from the parties as to whether NYCHA has complied with the obligations for which the proposed decree sets a specific deadline.
DISCUSSION The Second Circuit recognizes a “strong federal policy favoring the approval and enforcement of consent decrees.” SEC v. Citigroup Glob. Mkts., Inc., 752 F.3d 285, 292 (2d Cir. 2014) (citation and quotation marks omitted). A district court only “has the power to enter or reject such a judgment, not to alter it.” SEC v. Petro-Suisse Ltd., 2013 WL 5348595, at *3 (S.D.N.Y. Sept. 25, 2013). Although a district court is not merely a “rubber stamp” for a government agency seeking the entry of a consent decree, see Citigroup, 752 F.3d at 293, its review of a proposed consent decree is—for better or worse—more deferential in the context of a government enforcement action, see SEC v. Caledonian Bank Ltd., 317 F.R.D. 358, 374 n.15 (S.D.N.Y. 2016) (citing SEC v. Citigroup Glob. Mkts. Inc., 34 F. Supp. 3d 379, 380-81 (S.D.N.Y. 2014)). The “proper standard for reviewing a proposed consent judgment involving an enforcement agency requires that the district court determine whether the proposed consent decree is fair and reasonable, with the additional requirement that the ‘public interest would not be disserved,’ in the event that the consent decree includes injunctive relief.” Citigroup, 752
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F.3d at 294 (internal citations omitted). Absent a “substantial basis in the record” to conclude that the consent decree is not fair and reasonable or that the public interest would be disserved, “the district court is required to enter the order,” irrespective of the adequacy of the consent decree. Citigroup, 752 F.3d at 294. While this deferential standard arose in the context of an SEC enforcement action, courts in this circuit have since extended it to other government enforcement contexts. See, e.g., U.S. Commodity Futures Trading Comm’n v. Deutsche Bank AG, 2016 WL 6135664, at *2 (S.D.N.Y. Oct. 20, 2016); United States v. Int’l Bus. Machs. Corp., 2014 WL 3057960, at *1 (S.D.N.Y. July 7, 2014).
But two aspects of this action cast doubt over whether Citigroup ought to apply here. The first aspect relates to the nature of the claims asserted by the Government. Certainly, an action on behalf of the EPA to address violations of the Toxic Substances Control Act falls within the Government’s enforcement purview. See, e.g., United States v. Accolade Constr. Grp., Inc., 2017 WL 2271462, at *1 (S.D.N.Y. May 23, 2017) (citing 15 U.S.C. § 2601 et seq.). But whether actions brought under the Anti-Fraud Injunction Act, 18 U.S.C. § 1345 or the U.S. Housing Act, 42 U.S.C. § 1437d(j) are properly characterized as government enforcement actions within Citigroup’s ambit is a thornier question.14 In particular, 18 U.S.C. § 1345 simply provides a procedural vehicle for the Government to enjoin substantive violations of enumerated federal fraud statutes or restrain the fruits of such violations during the pendency of a criminal prosecution. See 18 U.S.C. § 1345. The legislative history corroborates the procedural nature of § 1345 as allowing “the Attorney General to put a speedy end to a fraud scheme by seeking an

14

This action also raises the issue of Citigroup’s applicability to a proposed consent decree that purports to

resolve an action that asserts prototypical government enforcement claims and other claims that do not fit the typical

government enforcement model. Nonetheless, this Court need not wade into these uncertain waters because its

decision is binary—it only has the power to enter or reject the Proposed Consent Decree. See Petro-Suisse Ltd.,

2013 WL 5348595, at *3.

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injunction in federal district court” based on Congress’ concern that “innocent people” may continue to be victimized during the pendency of an investigation of a fraudulent scheme before the case is ready for prosecution, which “often takes months, if not years.” See S. Rep. No. 98225, at 401-02 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3539-40.
Likewise, the Government’s “claim” under § 1437d(j)(3) arguably falls outside the archetypical government enforcement framework. In that paradigm, a statutory regime (such as the Toxic Substances Control Act or the federal securities laws) proscribes certain conduct and prescribes penalties and remedies to punish and address statutory violations. Cf. Nat’l Res. Def. Council, Inc. v. FDA, 760 F.3d 51, 168 (2d Cir. 2014) (describing the “traditional model of administrative or judicial enforcement” as featuring “an investigation by executive or administrative personnel, followed by the issuance of a case-initiating document that sets forth the conclusions or charges reached by the prosecuting authority,” followed by an administrative hearing or lawsuit that results in an adjudication by the agency or a court that leads to the imposition of remedies and penalties). By contrast, § 1437d(j) merely enumerates various administrative remedies that HUD may employ to remedy a public housing agency’s “substantial default.” See 42 U.S.C. § 1437d(j)(3). Put differently, 18 U.S.C. § 1345 and 42 U.S.C. § 1437d(j) do not directly govern the conduct of the enforced party, but set forth procedures addressed to the enforcing authority.
The second aspect relates to the broader nature of this action. In particular, Citigroup’s focus on judicial deference to a government agency’s consent decree is somewhat in tension with a court’s quasi-managerial role in implementing a consent decree to reform a state or local institution. See Thompson v. U.S. Dep’t of Housing & Urban Dev., 404 F.3d 821, 827 (4th Cir. 2005) (citing Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325, 1338 (1st Cir. 1991))
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(observing that “[i]n overseeing broad institutional reform litigation, the district court becomes in many ways more like a manager or policy planner than a judge”); Angela R. ex rel. Hesselbein v. Clinton, 999 F.2d 320, 326 (8th Cir. 1993) (recognizing that the entry of such a consent decree “is often only the beginning of extended judicial involvement”). The role of the court in these so-called “institutional reform” cases typically entails ordering broad relief to remedy the legal violations of an institution, which unavoidably requires a court to grapple with policy considerations. By contrast, a court’s role in the Citigroup context is constrained to ensuring the legal and procedural propriety of the proposed decree in deference to the government agency’s exercise of discretion—such as the SEC’s decision to settle with a private party for a certain sum of money. Nonetheless, because neither the parties nor Intervenors disputes Citigroup’s applicability or articulates another standard that should apply, this Court assumes that Citigroup governs. I. Fairness and Reasonableness
In reviewing a government agency’s consent decree for fairness and reasonableness, a court should at minimum “assess (1) the basic legality of the decree; (2) whether the terms of the decree, including its enforcement mechanism, are clear; (3) whether the consent decree reflects a resolution of the actual claims in the complaint; and (4) whether the consent decree is tainted by improper collusion or corruption of some kind.” Citigroup, 752 F.3d at 294-95 (internal citations omitted). Though the Second Circuit recognized without providing further guidance that a district court “may need to make additional inquiry to ensure that the consent decree is fair and reasonable” depending on the decree, the “primary focus of the inquiry . . . should be on ensuring the consent decree is procedurally proper, using objective measures similar to the factors set out above, taking care not to infringe on the [agency’s] discretionary
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authority to settle on a particular set of terms.” Citigroup, 752 F.3d at 295. A. Basic Legality A proposed consent decree is legal “so long as it is within the Court’s authority to
enter the decree and within the Plaintiff’s authority to enforce it.” Caledonian Bank, 317 F.R.D. at 370 (quotation marks omitted). For instance, a proposed consent decree may not satisfy the basic legality requirement if a statute prohibits its entry in the absence of statutorily required findings. See Citigroup, 752 F.3d at 294-95 (citing Benjamin v. Jacobsen, 172 F.3d 144, 158 (2d Cir. 1999) (en banc) (discussing the Prison Litigation Reform Act’s need-narrownessintrusiveness requirement for prospective relief)). Indeed, courts in this circuit analyzing this factor have looked to whether the relevant statutes under which the action was brought permit the relief requested in the consent decree. E.g., Caledonian Bank, 317 F.R.D. at 370 (examining whether the proposed decree’s injunctive relief and disgorgement provisions fell within the SEC’s authority under the federal securities laws); Int’l Bus. Machs., 2014 WL 3057960, at *2 (determining whether the provisions for IBM’s reimbursement of “response costs” incurred by the EPA and IBM’s agreement to take future remedial action comported with CERCLA).
Here, the Government’s legality argument posits that while the statutes under which this action was brought do not explicitly authorize a monitor, a court may do so in its broad equitable discretion because those statutes authorize equitable relief. But such a labored argument is unnecessary. Certainly, “[t]he power of the federal courts to appoint special masters to monitor compliance with their remedial orders is well established.” City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011) (citation omitted); see, e.g., United States v. Apple, 992 F. Supp. 2d 963, 280 (S.D.N.Y. 2014) (collecting cases). This uncontroversial precept is beside the point, however, because the relief is not the monitor in the first instance, but
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the remedial action that this Court requires NYCHA—the enjoined defendant—to take. While not entirely clear, a generous read of the Proposed Consent Decree
suggests the following essential provisions: (1) a requirement that NYCHA comply with federal, state, and local lead paint statutes and regulations, (Proposed Consent Decree ¶ 18(a)); (2) a requirement that NYCHA comply with federal regulations requiring HUD housing to be decent, safe, sanitary, and in good repair, (Proposed Consent Decree ¶ 18(b)-(f)); (3) injunctive relief requiring NYCHA to establish a Compliance Department, Environmental Health and Safety Department, and Quality Assurance Unit in consultation with the monitor, (Proposed Consent Decree ¶¶ 63-65); and (4) injunctive relief requiring NYCHA to comply with federal regulations and rules relating to lead-safe work practices, lead abatement, lead paint disclosure and notification, and prioritization of lead paint hazards, (Proposed Consent Decree ¶¶ 66-70). As an initial matter, the Toxic Substances Control Act expressly confers upon district courts the authority to restrain any violation of certain prohibited acts, including the failure to comply with the federal lead-based paint rules promulgated by the EPA in 40 C.F.R. part 745. See 15 U.S.C. §§ 2616, 2689. And even to the extent that the proposed decree’s injunctive relief is not expressly contemplated by the relevant provisions on which this action is premised, federal courts undoubtedly possess the authority to order relief for state and local officials and agencies’ failure to comply with federal law. Cf. New York v. United States, 505 U.S. 144, 179 (1992). Nothing in those statutes—i.e., the U.S. Housing Act, the federal Anti-Fraud Injunction Act, and the Toxic Substances Control Act—precludes the exercise of such authority.
In their opposition papers, Intervenors deploy the same arguments they asserted in seeking intervention—namely, that certain federal statutes and regulations confer participation and economic rights on NYCHA tenants. See United States v. N.Y.C. Housing Auth., 326
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F.R.D. 411, 415 (S.D.N.Y. 2018). This time, however, Intervenors repackage them in support of their contention that to pass Citigroup’s basic legality test, a consent decree that implicates NYCHA’s management must explicitly provide participation and economic opportunities for tenants. As an initial matter, Intervenors’ contentions rest on the faulty premise that the Proposed Consent Decree—merely by omission—encroaches upon the tenant opportunities contemplated by 24 C.F.R. § 964.135, 42 U.S.C. § 1437c-1, and 12 U.S.C. § 1701u. But more to the point, Intervenors’ arguments reveal a fundamental misunderstanding of Citigroup’s “basic legality” factor, which focuses on this Court’s authority to enter the Proposed Consent Decree and the Government’s authority to enforce it. Whatever the nature of NYCHA tenants’ statutory or regulatory rights or interests in managerial or economic opportunities,15 the statutes and regulations that Intervenors cite simply have no bearing on the legality of the proposed decree.
B. Clarity of the Proposed Decree The Proposed Consent Decree’s indefiniteness as to NYCHA’s obligations and
the enforcement mechanism forecloses approval of the settlement at this juncture. Cf. Int’l Bus. Machs., 2014 WL 3057960, at *3 (finding consent decree sufficiently clear where the decree detailed “specific enforcement mechanisms” and detailed “Defendants’ responsibilities under the decree”). The case that Citigroup cites for this factor illustrates why. Citigroup, 752 F.3d at 295 (citing Angela R. ex rel. Hesselbein v. Clinton, 999 F.2d 320 (8th Cir. 1993)). In Clinton, which involved a “comprehensive revision of the child welfare system in Arkansas,” the Eighth Circuit found that the district court abused its discretion in entering a consent decree that did not properly define its enforcement mechanisms. Clinton, 999 F.2d at 322, 325 (describing ambiguities in which parties could enforce which provisions of the consent decree). The Eighth

15

NYCHA’s records indicate that 2,537 out of 11,182 NYCHA employees are NYCHA residents, as of

October 1, 2018. (ECF No. 213, Baez v. N.Y.C. Hous. Auth., 13cv8916 (S.D.N.Y.).)

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Circuit explained that “[u]nless [the enforcement] mechanism is clearly defined—in terms of who may bring an enforcement action, for what kinds of violations, and so forth—it is impossible to determine,” as relevant here, “the burden that approval of the decree will impose upon the federal judiciary.” Clinton, 999 F.2d at 325 (citing Schmidt v. Lessard, 414 U.S. 473 (1974)) (referencing the specificity requirements of Rule 65(d)); cf. United States v. Microsoft Corp., 56 F.3d 1448, 1461-62 (D.C. Cir. 1995) (“[T]he district judge who must preside over the implementation of the decree is certainly entitled to insist on that degree of precision concerning the resolution of known issues as to make his task, in resolving subsequent disputes, reasonably manageable.”).
The concerns over vague enforcement mechanisms are fully animated in this case. In relevant part, the Government reserves “all legal and equitable remedies available to enforce the provisions of [the] Consent Decree,” which expressly provides for this Court’s continuing jurisdiction in “effectuating or enforcing compliance with [its] terms.” (Proposed Consent Decree ¶¶ 73, 84.) At the other end of the spectrum, the Proposed Consent Decree provides that it “shall not be construed to . . . grant any cause of action to[] anyone not a Party to [the] Consent Decree.” (Proposed Consent Decree ¶ 78.) But these broad contours merely memorialize the Government’s non-waiver of its enforcement authority and the uncontroversial proposition that a court possesses the authority to ensure compliance with its orders, including consent decrees. See Handschu v. Special Servs. Div., 2007 WL 1711775, at *11 (S.D.N.Y. June 13, 2007) (citing Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985)). Put differently, they offer scant precision on the provisions or obligations (to the extent that they are defined) that are enforceable, the types of violations that may be enforced, or the mechanisms by which noncompliance with the Proposed Consent Decree may be addressed.
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To be sure, the indeterminacy of the enforcement provisions goes hand in hand with the indeterminacy of NYCHA’s obligations under the proposed decree generally. For instance, the injunctive relief includes a requirement that NYCHA “comply in all respects with the lead-safe work practices” required by HUD and EPA regulations “and with the Abatement Rule, 40 C.F.R. part 745, subpart L.” (Proposed Consent Decree ¶ 67.) This requirement, however, is not “specific and definite enough to apprise [NYCHA] of the conduct that is being proscribed.” Ronnie Van Zant, Inc. v. Cleopatra Records, Inc., 906 F.3d 253, 258 (2d Cir. 2018); see also Schmidt, 414 U.S. at 476 (observing that “[s]ince an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed”). Stated differently, even though the substantive legal requirements with which NYCHA must comply may be identifiable, whether its obligations are sufficiently determinate is a separate analytical issue. Accord Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 748 (2d Cir. 1994) (rejecting injunctive provisions as insufficiently specific even where they had identified the “particular laws and contracts upon which [plaintiff] had based its action” that defendant was enjoined from violating).
The parties’ own papers illustrate the formlessness of NYCHA’s obligations. In reiterating the urgent need for a monitor, the Government claims that NYCHA has already violated paragraph 67 of the Proposed Consent Decree by failing to “immediately” comply with its obligations regarding lead-safe work practices even before the approval of the proposed decree. (See Memorandum of Law in Support of the United States’ Motion to Enter the Proposed Consent Decree, ECF No. 44 (“Gov’t Brief”), at 13-16; Folch Decl. ¶¶ 4-8.) Unsurprisingly, NYCHA disputes that it violated paragraph 67, explaining that it has been making efforts to comply that involve many complex and interrelated steps, which take time to
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implement. (See NYCHA’s Memorandum of Law in Support of Motion to Enter the Consent Decree, ECF No. 46 (“NYCHA Brief”), at 4 n.11; Folch Decl., Ex. C.) Whatever the merits of the parties’ positions, NYCHA’s evident—and facially reasonable—belief that it is not in breach of the Proposed Consent Decree suggest that its terms are not sufficiently clear.
Moreover, even assuming that the obligations the Proposed Consent Decree imposes on NYCHA to comply with various health and safety regulations may fairly be construed as injunctive relief—which, as noted below, may not be entirely clear—those terms are similarly amorphous. In relevant part, the agreement provides that NYCHA shall comply with (1) federal, state, and local lead paint safety statutes and regulations; and (2) federal regulations requiring HUD housing to be decent, safe, sanitary, and in good repair with respect to mold, heating, elevators, and pests. (Proposed Consent Decree ¶ 18(a)-(f).) These provisions also require NYCHA to (1) make its housing free of lead paint “within an accelerated timeframe”; (2) “remedy the conditions described in the Complaint” related to mold, heating, elevators, and pests “and prevent recurrence of those conditions”; and (3) “attempt to avoid and promptly address any other health and safety issue that arises.” (Proposed Consent Decree ¶ 18(a)-(f).) Finally, the Proposed Consent Decree requires NYCHA to, “[a]s soon as practicable after the Monitor’s appointment,” create certain plans “collaboratively” or “in consultation with” the monitor “for the achievement of” or “to achieve sustained compliance with” subdivisions (a)(g) of paragraph 18. (See generally Proposed Consent Decree ¶¶ 27-34.)
At the outset, the body of statutes and regulations with which NYCHA must comply is not entirely defined. In relevant part, paragraph 18 requires NYCHA to “comply in all respects with Lead Paint Laws,” (Proposed Consent Decree ¶ 18(a)(7)), which is defined to mean “federal, state or local lead paint safety statutes and regulations,” (Proposed Consent Decree
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¶ 13(l)). While the proposed decree lists several federal statutes and regulations that are included within this definition, it does not indicate which state or local statutes and regulations would form the basis for NYCHA’s obligations. And even though paragraph 18 requires more than a naked directive to comply with the laws it does identify, its instructions to remedy and prevent recurrence of various health and safety conditions described in the Complaint as well as those that may arise still fail to specify “the ways in which [NYCHA] must alter [its] behavior.” See Mickalis Pawn Shop, 645 F.3d at 144 (finding insufficient for Rule 65(d) an obligation to “act ‘in full conformity with applicable laws pertaining to firearms,’ and to ‘adopt[] appropriate prophylactic measures to prevent violation’ of those laws, without specifying which laws are ‘applicable’ or identifying the ways in which the defendants must alter their behavior to comply with those laws”); accord Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003) (reiterating the “well-established principle that the language of a consent decree must dictate what a party is required to do and what it must refrain from doing”).
Additionally, the Proposed Consent Decree’s definition of NYCHA’s obligations by reference to the Complaint “is expressly prohibited by Rule 65(d), which provides that ‘[e]very order granting an injunction’ must ‘describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.’” Mickalis Pawn Shop, 645 F.3d at 146 (quoting Fed. R. Civ. P. 65(d)(1)(C)) (emphasis in original). These are not simply “technical requirements,” but are meant to “prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Schmidt, 414 U.S. at 476. While the temptation to define NYCHA’s remedial obligation by reference to the Complaint is certainly understandable given the breadth of the wrongdoing alleged in the pleading, the risk of
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uncertainty and confusion is magnified precisely for that reason. Nor are these deficiencies cured by the Proposed Consent Decree’s extensive
provisions setting forth the powers and responsibilities of the monitor in developing and implementing the plans and performance requirements that NYCHA must follow. (See Proposed Consent Decree ¶¶ 18-37.) As the Second Circuit has explained, a consent decree’s “sweeping delegations of power to the Special Master violate[s] Rule 65(d)” because “[a] court is required to frame its orders so that those who must obey them will know what the court intends to forbid.”16 Mickalis Pawn Shop, 645 F.3d at 145-46 (citing Diapulse Corp. of Am. v. Carba, Ltd., 626 F.2d 1108, 1111 (2d Cir. 1980)) (emphasis in original); accord United States v. Armour & Co., 402 U.S. 673, 682 (1971). To be fair, the directive that NYCHA must formulate plans to achieve and sustain compliance with federal health and safety regulations offers more clarity than other previously described provisions. Still, its ambiguity as to when those plans must be developed or how much cooperation with the monitor is necessary does not allow this Court to meaningfully determine when those provisions have been violated. Accord King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995) (explaining that to issue a contempt order, a movant must establish that the order “leaves ‘no uncertainty in the minds of those to whom it is addressed,’ who ‘must be able to ascertain from the four corners of the order precisely what acts are forbidden’” (internal citations omitted)).
Ultimately, many of NYCHA’s obligations relating to the health and safety conditions at the core of this litigation are too indeterminate for this Court to approve the Proposed Consent Decree. And in this Court’s view, the lack of clarity is compounded by the

16

Likewise, the Government and the monitor’s ability to enforce these plans and performance requirements is

a step removed from the ability to enforce the provisions of the Proposed Consent Decree itself and thus adds no

additional clarity to the decree’s enforcement mechanisms. (See Proposed Consent Decree ¶¶ 24, 30.)

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more basic question of whether subsections (a)-(f) of paragraph 18 of the proposed decree affirmatively enjoin NYCHA or merely set forth the monitor’s duty to ensure that NYCHA complies with federal health and safety standards—a distinction implied by the parties’ briefs. (Compare Gov’t Brief, at 21-22 (framing the decree’s relief in terms of the monitor provisions), with NYCHA Brief, at 4 (framing the decree’s requirements in terms of NYCHA’s obligations).) Without additional concreteness, NYCHA cannot possibly know the acts that are restrained or required, and this Court cannot fulfill its duty to enforce compliance with its orders.
This is not to say that the Proposed Consent Decree must painstakingly detail every act that NYCHA must take or forbear from taking. Indeed, such an attempt would almost certainly be a fool’s errand in the context of institutional reform litigation, for which injunctions “are not so much peremptory commands to be obeyed in terms[] as they are future-oriented plans designed to achieve broader public policy objectives in a complex, ongoing fact situation.” N.Y. State Ass’n for Retarded Children Inc. v. Carey, 706 F.2d 956, 970 n.17 (2d Cir. 1993) (quoting Abram Chayes, Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4, 56 (1982)). But Citigroup fairly suggests that even consent decrees that implement broad institutional reform— such as the comprehensive revision of Arkansas’ child welfare system—require some threshold of clarity. Citigroup, 752 F.3d at 295 (citing Clinton, 999 F.3d at 325). Whether that threshold ought to be higher based on the lasting nature of injunctive relief in institutional reform litigation, or lower to account for more dynamic factual circumstances, need not be resolved on this motion. The current failure of the Proposed Consent Decree to sufficiently define its injunctive relief and enforcement mechanism precludes its approval.
C. Resolution of Actual Claims A consent decree that settles a government enforcement action must also reflect a
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resolution of the “actual claims in the complaint.” Citigroup, 752 F.3d at 295. Few postCitigroup cases in this circuit have examined when a consent decree would or would not reflect a resolution of the actual claims asserted. This sparseness of case authority may in part be attributable to decrees that order relief that plainly resolves the asserted claims. For instance, another judge in this district found that a consent decree requiring the defendant “to reimburse EPA for past-response costs and to take certain remedial actions” in the decree “directly resolve[d]” two claims “seeking reimbursement for Plaintiff’s past-response costs pursuant to 42 U.S.C. § 9607(a), and . . . seeking remedial actions from Defendant pursuant to 42 U.S.C. § 9606(a).” Int’l Bus. Machs., 2014 WL 30357960, at *3; see 42 U.S.C. § 9606(a) (authorizing “such relief as may be necessary to abate” an “imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility” and “such relief as the public interest and the equities of the case may require”).
Certainly, a consent decree that orders relief authorized by the statutory regime under which a claim is brought satisfies this factor, even if that relief is less than that which could have been obtained after trial. It should be uncontroversial, for example, that a proposed consent decree in an SEC enforcement case that grants disgorgement and enjoins a defendant from violating the federal securities laws clearly reflects a resolution of claims brought under the anti-fraud provisions of those statutes. E.g., Caledonian Bank, 317 F.R.D. at 369-70; see generally SEC v. Subaye, Inc., 2014 WL 4652578 (S.D.N.Y. Sept. 28, 2014); SEC v. CR Intrinsic Inv’rs, LLC, 26 F. Supp. 3d 260 (S.D.N.Y. 2014). Likewise, the Proposed Consent Decree’s injunctive relief requiring NYCHA to comply with its lead-safe work practices, lead abatement, and lead disclosure obligations under 40 C.F.R. part 745, subparts E, F, and L clearly
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resolves the Government’s Toxic Substances Control Act claim. The Government’s other claims raise the question of whether a consent decree
that does not provide for any statutorily authorized relief, but separate injunctive relief that purports to address the underlying conduct, can be fairly said to reflect a “resolution of the actual claims in the complaint.” Citigroup, 752 F.3d at 295. In particular, the Complaint asserts a claim for substantial default pursuant to 42 U.S.C. § 1437d(j)(3) and a claim to enjoin NYCHA’s ongoing or impending false statements pursuant to 18 U.S.C. § 1345. Section 1437d(j)(3) authorizes the HUD Secretary to take a broad panoply of remedial actions if a public housing agency substantially defaults on its covenants or conditions under an annual contributions contract, or if a public housing agency designated by HUD as “troubled” substantially defaults on an agreement with HUD to improve its management performance. See 42 U.S.C. § 1437d(j)(3); see also 24 C.F.R. § 907.3 (enumerating bases for substantial default, including the violation of a federal statute or regulation). These remedies do not require the public housing agency’s consent or contemplate judicial involvement, except that the HUD Secretary may petition a court for the appointment of a receiver, see 42 U.S.C. § 1437d(j)(3)(A)(ii), which the court “shall appoint” to conduct the public housing agency’s affairs “upon a determination that a substantial default has occurred and without regard to the availability of alternative remedies,” see 42 U.S.C. § 1437d(j)(3)(F). Separately, the Anti-Fraud Injunction Act authorizes the Attorney General to bring a federal civil action to enjoin ongoing or impending violations of enumerated federal criminal statutes, including 18 U.S.C. § 1001. See 18 U.S.C. § 1345(a)(1).
It bears underscoring that the Proposed Consent Decree does not seek the judicial appointment of a receiver or any of the other remedies set forth in 42 U.S.C. § 1437d(j)(3) or 24 C.F.R. § 907.7. In fact, HUD specifically reserves its right to “appoint, or to seek judicial
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appointment of, a receiver for substantial default, as well as all other administrative remedies.” (Proposed Consent Decree ¶ 81.) Moreover, the Proposed Consent Decree expressly disclaims the monitor’s “responsib[ility] for NYCHA’s day-to-day operations.” (Proposed Consent Decree ¶ 35.) Instead, the Proposed Consent Decree purports to address NYCHA’s violations of HUD’s lead-paint safety regulations and its obligation under 24 C.F.R. § 5.703 to provide “decent, safe, and sanitary housing” by restating NYCHA’s obligation to comply with those regulations and then providing a monitor to oversee and enforce compliance. The decree’s relief as to NYCHA’s alleged false statements to federal regulators is similarly oblique. Rather than seeking to directly enjoin such violations, the Proposed Consent Decree requires NYCHA to “ensure the integrity of [public housing inspections]” and to establish a Compliance Department charged with “[e]nsuring the accuracy of external reporting and statements by NYCHA” and the integrity of public housing inspections. (Proposed Consent Decree ¶¶ 18(g), 63(b) & (e).)
This Court nevertheless concludes that the Proposed Consent Decree reflects a resolution of the Government’s “actual claims” under 42 U.S.C. § 1437d(j)(3) and 18 U.S.C. § 1345 because it addresses the conduct underlying those claims, despite providing for relief outside those statutory regimes. Admittedly, Citigroup’s formulation of what a court must consider in evaluating the fairness and reasonableness of a government consent decree differs from prior circuit precedent reiterating the “standards controlling a court’s authority to enter a consent decree” set forth by the Supreme Court. Kozlowski v. Coughlin, 871 F.2d 241, 244 (2d Cir. 1989) (citing Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland (“Firefighters”), 478 U.S. 501, 525 (1986)). Absent further clarification by the Second Circuit, however, this Court discerns no meaningful difference between Citigroup’s requirement that a proposed decree reflect a resolution of the actual claims in the complaint and Firefighters’ requirement that a
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consent decree “spring from and serve to resolve a dispute within the court’s subject matterjurisdiction” and “come within the general scope of the case made by the pleadings.” See Firefighters, 478 U.S. at 525 (citations omitted).
Of course, a proposed consent decree cannot be untethered from the conduct complained of because “a federal court is more than a recorder of contracts from whom parties can purchase injunctions; it is an organ of government constituted to make judicial decisions.” Firefighters, 478 U.S. at 525 (citation and internal quotation marks omitted); accord Citigroup, 752 F.3d at 295 (requiring the reviewing court to still “establish that a factual basis exists for the proposed decree”). But it is ultimately “the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree.” Firefighters, 478 U.S. at 522. In other words, a consent decree necessarily reflects a voluntary surrender of claims in exchange for certain bargained-for obligations. Cf. Citigroup, 752 F.3d at 295 (“‘[C]onsent decrees are normally compromises in which the parties give up something they might have won in litigation and waive their rights to litigation.’ Thus, a consent decree ‘must be construed . . . as written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation.’” (internal citations omitted) (alterations in original)). Accordingly, these principles indicate that a consent decree that addresses the conduct underlying the dispute between the parties may reflect a resolution of the asserted claims even if its remedies are not contemplated by the statutory regime under which the claims are brought. Cf. Firefighters, 478 U.S. at 525 (observing that the remedies provided by a consent decree may be broader than that which a court may grant after trial).
D. Improper Collusion or Corruption In examining whether a proposed consent decree is “tainted by improper collusion
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or corruption of some kind,” post-Citigroup cases have considered whether the settlement resulted from arm’s-length negotiation, the sophistication of the parties and competence of counsel, and the extent to which the proposed decree reflects adversarial negotiations. E.g., Caledonian Bank, 317 F.R.D. at 373; Int’l Bus. Machs., 2014 WL 6057960, at *3. Here, the parties represent that the Proposed Consent Decree resulted from months of intense negotiations among the Government, NYCHA, and the City. (See Gov’t Brief, at 22; NYCHA Brief, at 5; accord July 10, 2018 Hr’g Tr. at 9 (statement by Government counsel that initial negotiations began in August 2017 and intensified that winter).) The parties also warrant—and the record reveals no basis to disagree—that the United States Attorney’s Office, NYCHA’s retained counsel, and the City’s Corporation Counsel are highly competent and experienced. II. Whether the Public Interest Is Disserved
Where, as here, a proposed consent decree contains injunctive relief, a “district court must assure itself the ‘public interest would not be disserved by the issuance of a permanent injunction.” Citigroup, 752 F.3d at 296 (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). In other words, this inquiry turns on “whether the public interest would be disserved by entry of the consent decree.” Citigroup, 752 F.3d at 296. The Second Circuit instructs, however, that the Government’s decision as to “whether the proposed . . . consent decree best serves the public interest . . . rests squarely with the [Government], and its decision merits significant deference.” Citigroup, 752 F.3d at 296.
Aside from two markers, Citigroup offers sparse guidance on the circumstances in which the entry of a government consent decree would disserve the public interest. On one hand, a consent decree that “bar[s] private litigants from pursuing their own claims independent of the relief obtained under the consent decree” may disserve the public interest. Citigroup, 752 F.3d at
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297. In that regard, this factor appears to reach further than whether a proposed decree’s injunctive provisions directly disserve a substantive policy goal. On the other hand, a court may not find that a consent decree disserves the public interest “based on its disagreement with the [Government’s] decision on discretionary matters of policy,” such as a decision to “bring the proper charges” or “settle without requiring an admission of liability.” Citigroup, 752 F.3d at 297. Whatever the field of appropriate public interest considerations may be, the Second Circuit instructs that the inquiry must focus on the effect of the decree itself. See Citigroup, 752 F.3d at 297 (citing Microsoft, 56 F.3d at 1459).
This Court concludes that entry of the Proposed Consent Decree would disserve the public interest. At heart, the proposed decree would bring about an unwarranted—and as far as this Court is aware, unprecedented—judicial usurpation of responsibilities that Congress has expressly entrusted to HUD, a Cabinet-level department of the Executive. See Hedges v. Obama, 2012 WL 1721124, at *28 (S.D.N.Y. May 16, 2012) (recognizing the “strong public interest in . . . maintaining the appropriate separation of powers”). The Proposed Consent Decree also enables a judicial intrusion into the legislative and regulatory functions of the political branches by effectuating the purposes of the U.S. Housing Act in a way that operates in the shadows of the statutory scheme. In doing so, the parties’ proposed framework effectively rewrites the law. Specifically, Section 6 of the U.S. Housing Act and the regulations promulgated thereunder set forth detailed procedures for HUD to evaluate the quality of public housing, see 42 U.S.C. § 1437d(f); 24 C.F.R. part 902 subpart B; 24 C.F.R. § 5.703; for HUD to evaluate a public housing agency’s management performance, see 42 U.S.C. § 1437d(j)(1); 24 C.F.R. part 902 subpart D; for HUD to identify and assist public housing agencies whose performance is deficient, see 42 U.S.C. § 1437d(j)(2); 24 C.F.R. part 902 subparts A & G; and
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for HUD to take action if a public housing agency is deemed to be in substantial default, see 42 U.S.C. § 1437d(j)(3); 24 C.F.R. part 907.
Consistent with HUD’s primary regulatory responsibility, Congress endowed HUD with a robust arsenal of remedies to address a public housing agency’s management and operational failures. For a public housing agency in substantial default—as the Government alleges here—HUD has the authority to (1) solicit proposals from other public housing agencies and private housing management agents to manage the public housing agency’s housing or programs; (2) solicit proposals from other public housing agencies and private entities to oversee implementation of funds to assist the public housing agency with capital and management activities; (3) take possession of the public housing agency and, in certain circumstances, appoint an administrative receiver; or (4) require the public housing agency to make other arrangements for managing the public housing agency “acceptable to the Secretary and in the best interests of the public housing residents and families.” 42 U.S.C. § 1437d(j)(3)(A), (j)(3)(B)(ii)(III)(bb). In addition to these remedies, HUD may also provide “technical assistance for existing [public housing agency] management staff” or “assistance deemed necessary, in the discretion of HUD, to remedy emergency conditions.” 24 C.F.R. § 907.7(a).
While these statutory and regulatory remedies do not require the public housing agency’s consent or contemplate judicial involvement, HUD may seek the judicial appointment of a receiver with broad remedial powers to correct the substantial default, 42 U.S.C. § 1437d(j)(3)(A)(ii), which a court must appoint upon a determination of substantial default, 42 U.S.C. § 1437d(j)(3)(F). The receiver may abrogate the public housing agency’s contracts, demolish and dispose of the public housing agency’s assets, establish new public housing agencies, consolidate the public housing agency into other public housing agencies, circumvent
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certain state and local requirements relating to procurement or financial controls, and exercise additional powers granted by the court. See 42 U.S.C. § 1437d(j)(3)(C). Moreover, the HUD Secretary may make available to the receiver “such assistance as the Secretary determines in the discretion of the Secretary is necessary and available to remedy the substantial deterioration of living conditions in individual public housing projects or other related emergencies that endanger the health, safety, and welfare” of public housing residents. 42 U.S.C. § 1437d(j)(3)(E). These drastic remedies have been deployed successfully to reform other public housing agencies, including HUD’s takeover of the Chicago Housing Authority in the 1990s and the judicial appointment of receivers to oversee the Boston Housing Authority in the 1980s and the District of Columbia Housing Authority in the 1990s.
The legislative history for 42 U.S.C. § 1437d(j) also corroborates HUD’s primary responsibility to reform failing public housing. Cf. Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor, J., concurring) (arguing that even if “a statute’s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful” in allowing a court to “corroborate and fortify [its] understanding of the text”). In relevant part, the Cranston-Gonzalez National Affordable Housing Act of 1990 overhauled Section 6(j) of the U.S. Housing Act to include substantially the same remedies set forth in the current version of § 1437d(j). See Pub. L. No. 101-625, § 502(a), 104 Stat. 4079 (1990). The conference committee report confirms Congress’ intent for HUD to use its authority under § 1437d(j)(3) “to move aggressively to improve living conditions for tenants in severely troubled public housing,” H.R. Rep. No. 101-943 (1990) (Conf. Rep.), as reprinted in 1990 U.S.C.C.A.N. 6070, 6119-20; accord S. Rep. No. 101-316 (1990), as reprinted in 1990 U.S.C.C.A.N. 5763, 5939-40 (explaining that these provisions were designed to enhance HUD’s authority to reform public
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housing management). Subsequent amendments to 42 U.S.C. § 1437d(j)(3) that expand HUD’s powers
and mandates reaffirm HUD’s affirmative responsibility to actually exercise its authority. See Housing and Community Development Act of 1992, Pub. L. No. 102-550, § 113, 106 Stat. 3672 (1992). The Senate committee report recognized that then-existing law “provide[d] HUD with a strong set of powers” that “if properly implemented, would go a long way towards reforming the management of troubled [public housing agencies] and improving the living conditions of tenants who reside in housing administered by these agencies.” S. Rep. No. 102-332, at 46 (1992). But as Senate Report 332 explained, Section 6(j) needed to be bolstered because HUD “has rarely exercised these powers . . . .” S. Rep. No. 102-332, at 46. It reaffirmed HUD’s role as follows:
The Committee believes strongly that the federal government has an affirmative responsibility—to the residents of public housing, to the federal taxpayers—to use its resources to remedy the management deficiencies in those few local agencies that are troubled. HUD cannot “shift the blame” to local malfeasance or incompetence; it ultimately has the responsibility to monitor the performance of recipients of federal aid and to act aggressively when such aid is being misused. S. Rep. No. 102-332, at 46. These passages do not suggest that Congress intended HUD to sit idly by and allow a district court to reform a public housing agency in the first instance.
Against this legislative backdrop, HUD’s comparative abdication of its remedial responsibilities and powers under 42 U.S.C. § 1437d(j)(3) and 24 C.F.R. part 907 is particularly striking, especially given all of the Government’s allegations regarding the deplorable conditions of NYCHA housing and NYCHA’s deliberate attempts to pull the wool over HUD’s eyes. Indeed, the Proposed Consent Decree relegates HUD to a narrow, auxiliary role in relaxing its own regulatory constraints to allow NYCHA to comply with the decree, lifting its earlier “zero threshold” sanction requiring NYCHA to obtain HUD approval before drawing any federal
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funds, agreeing not to offset federal funding by the amount of the City’s funding obligation, and meeting with the monitor and NYCHA to “discuss strategies to improve NYCHA’s ability to comply with its obligations under [the decree].” (Proposed Consent Decree ¶¶ 48-52.) The inversion of roles contemplated by the Proposed Consent Decree is illustrated by the Corporation Counsel’s statement at the July 10, 2018 conference regarding the alignment of the Government, NYCHA, and the City. Specifically, he shared the City’s expectation that “because we are allied in interests that we will have in the Government, in the U.S. Attorney’s Office, an effective advocate for NYCHA with Washington, and specifically with HUD.” (July 10, 2018 Hr’g Tr. at 46.) But any role that functionally cabins HUD to getting out of the way of the monitor and NYCHA contravenes the central role that Congress envisioned for HUD in enacting the very statutory provisions that the Complaint and the Proposed Consent Decree seek to enforce.
Instead, to address NYCHA’s management and operational deficiencies, the proposed decree establishes an elaborate monitorship to bring about organizational reform under the auspices of this Court and appropriates funding to assist in achieving the monitorship’s purposes. In particular, the Proposed Consent Decree obligates the monitor to develop Performance Requirements directed toward addressing the health and safety conditions referenced in paragraph 18. (Proposed Consent Decree ¶¶ 23-26.) Likewise, the Proposed Consent Decree requires NYCHA, together with the monitor, to develop Action Plans, an Operational Plan, and an Organizational Plan to remedy NYCHA’s violations of the U.S. Housing Act and HUD regulations. (Proposed Consent Decree ¶¶ 27-29.)
But such an arrangement implicates the fundamental separation of powers among the branches of the Federal Government by commandeering a court’s equitable powers to fashion a comprehensive injunctive remedy parallel to—yet entirely unmoored from—the
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existing statutory and regulatory framework. See New York, 505 U.S. at 182 (explaining that “[t]he Constitution’s division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment”). To be clear, this case does not implicate the Executive’s exercise of enforcement discretion, see Citigroup, 752 F.3d at 297, such as the SEC’s determination of what charges to bring, against whom to bring them, and what penalty to seek,17 cf. Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007); In re Aiken Cty., 725 F.3d 255, 266 (D.C. Cir. 2013) (opinion of Kavanaugh, J.) (distinguishing prosecutorial discretion in “whether to initiate charges for legal wrongdoing and to seek punishment, penalties, or sanctions against individuals or entities who violate federal law” from “the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch”).
Stated differently, the text, structure, and legislative history of the U.S. Housing Act do not indicate that HUD has discretion to select which deficient public housing agencies it chooses to assist. To the contrary, 42 U.S.C. § 1437d(j) reflects an affirmative legislative mandate for HUD to oversee all public housing agencies that receive federal funds. The Proposed Consent Decree upsets Congress’ balancing of priorities and its reasoned judgment about how to remedy a public housing agency’s institutional failure and who bears responsibility for that undertaking. Accord Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978) (stating that where Congress “does speak directly to a question, the courts are not free to ‘supplement’ Congress’ answer so thoroughly that the Act becomes meaningless”). HUD’s apparent acquiescence to a judicial encroachment upon legislative territory—and by extension,

17

In Citigroup, the Second Circuit found that the district judge abused his discretion by second-guessing the

SEC’s judgment in bringing certain claims and settling them on a particular set of terms. See Citigroup, 752 F.3d at

295-97. A court’s substitution of its own judgment for that of a regulator is a raw exercise of judicial power. By

contrast, this Court’s rejection of the Proposed Consent Decree does not animate those concerns.

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HUD’s congressionally conferred responsibilities—does not make it any less of an invasion. Even aside from these unanswered separation-of-powers questions, the extent to
which the Proposed Consent Decree vests the monitor with “discretion to determine the terms of the injunctions themselves” also raises substantial public concern. Mickalis Pawn Shop, 645 F.3d at 145. Here, absent objection by NYCHA or the Government, Performance Requirements “shall become binding” when the Government files them on the docket after its approval. (Proposed Consent Decree ¶ 24.) If NYCHA or the Government objects, the Performance Requirement may be modified or set aside, but only if found by this Court to be arbitrary or capricious—a highly deferential standard of review. (Proposed Consent Decree ¶¶ 24-25.) Similarly, for Action Plans, the Operational Plan, and the Organizational Plan that NYCHA must follow, the proposed decree for all intents and purposes removes this Court from the determination of what acts are required or prohibited. (Proposed Consent Decree ¶¶ 27-29.) In particular, a plan that NYCHA and the monitor agree upon and which the Government approves “shall be binding on NYCHA” on the date that the Government files the plan on the docket. (Proposed Consent Decree ¶ 30.) And if NYCHA, the monitor, or the Government disagree with or disapprove of a plan, the Proposed Consent Decree vests the monitor with the authority to unilaterally develop a plan to be approved by this Court—but also only under an arbitrary and capricious standard. (Proposed Consent Decree ¶ 31.)
The Supreme Court has “warned that ‘[t]he use of masters is to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause, and not to displace the court.’” Mickalis Pawn Shop, 645 F.3d at 145 (citing La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957)) (emphases added). At bottom, the proposed decree outsources the formulation of NYCHA’s obligations—the violation of which is ostensibly subject to this
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Court’s contempt powers—to the monitor and the parties without any meaningful judicial review. In this regard, the Proposed Consent Decree’s delegation of this Court’s ultimate authority to determine the terms of the injunctive relief is closer to a displacement of judicial authority than a decree in which a monitor aids the court by developing reforms to be approved by the court. E.g., Floyd v. City of N.Y., 959 F. Supp. 2d 668, 677-78 (S.D.N.Y. 2013).
One additional observation is warranted. A government agency’s eschewing of administrative remedies in favor of a consent decree and a federal court injunction is not always improper. Cf. Citigroup, 752 F.3d at 297 (noting that if the SEC does not wish to involve the courts, it may simply employ its own arsenal of remedies). The Government represented that it had considered a receivership but believed that a monitor “made the most sense” given NYCHA’s size and “the need for buy in and support from community residents, from tenants to employees, from all the people who make NYCHA run.” (July 10, 2018 Hr’g Tr. at 7.) It subsequently asserted that it opted for a monitor instead of a receiver because the latter would not have the benefit of the City’s funding commitment under the proposed decree. (Sept. 26, 2018 Hr’g Tr. at 201-02; accord Sept. 26, 2018 Hr’g Tr. at 184 (statement by NYCHA’s counsel).) The Government’s initial reason—buy in from tenants—is arguably inconsistent on its face with public comments opposing the proposed decree. The parties also do not explain why the City may only commit to provide funding if this Court installs a monitor, as opposed to some other solution. To be certain, the “province of the court is . . . not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). But now having “call[ed] upon the power of the courts in ordering a consent decree and issuing an injunction,” the Government must demonstrate that it is fair and reasonable and that it does not disserve the public interest. Citigroup, 752 F.3d
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at 297. For the reasons set forth above, the Proposed Consent Decree fails to satisfy the Citigroup standard.
PRUDENTIAL CONCERNS This Court would be remiss if it did not share additional concerns that the Proposed Consent Decree tests the limits of judicial legitimacy and capacity. As our Founding Fathers recognized, the judiciary “may truly be said to have neither force nor will but merely judgment,” and a court “disposed to exercise will instead of judgment” consequently substitutes “[its] pleasure for that of the legislative body.” The Federalist No. 78 (A. Hamilton). The Second Circuit notes that “several commentators have discussed generally potential dangers of resolving by consent decree class actions and so-called ‘public interest’ or ‘institutional reform’ litigation.” Barcia v. Sitkin, 367 F.3d 87, 105 n.23 (2d Cir. 2004). These scholarly criticisms of broad injunctive relief in consent decrees as a policymaking tool include the debatable legitimacy and authority of such judicial exercises of public power and the specter of circumventing the political process. Barcia, 367 F.3d at 105 n.23 (collecting authorities). To be clear, this case differs fundamentally from institutional reform litigation that seeks to remedy the constitutional or civil rights violations of a local school board, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954), a state human services agency, e.g., Angela R. ex rel. Hesselbein v. Clinton, 999 F.2d 320 (8th Cir. 1993), or a municipal police department, e.g., Floyd v. City of N.Y., 959 F. Supp. 2d 668 (S.D.N.Y. 2013). As a general matter, the enforcement and protection of constitutional rights is indisputably within the authority of a federal court. See Davis v. Passman, 442 U.S. 228, 242 (1979); accord United States v. Ghailani, 686 F. Supp. 2d 279, 290 (S.D.N.Y. 2009) (citing Nixon v. Fitzgerald, 457 U.S. 731, 783 (1982)) (“Determining whether a person’s constitutional rights have been violated
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and fashioning appropriate relief is a core, traditional function of American courts.”). And upon finding a constitutional violation, a federal court may exercise its equitable remedial powers “to restructure the operation of local and state governmental entities,” so long as the court “tailor[s] ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’” Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976) (citations omitted).
Aside from this basic limitation on a federal court’s equitable powers, however, the Supreme Court has long recognized a federal judge’s broad authority to create sweeping relief to remedy a constitutional violation. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (“Once a right and a violation have been shown, the scope of the district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”); accord Hills, 425 U.S. at 297 (citations omitted) (reiterating that “in the event of a constitutional violation ‘all reasonable methods be available to formulate an effective remedy,’ and that every effort should be made by a federal court to employ those methods ‘to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation’” (alteration in original)). Of course, institutional reform litigation that seeks to address constitutional violations requires some degree of flexibility in formulating equitable relief as a practical matter because the Constitution “does not ‘partake of the prolixity of a legal code,’” but “speaks instead with a majestic simplicity.” Davis, 442 U.S. at 241 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)).
But this is not an institutional reform case that seeks to remedy constitutional violations; nor is it one in which Congress has bestowed broad authority upon the courts to remedy violations of civil rights statutes. See, e.g., Local 28 Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 465 (1986) (“Congress deliberately gave the district courts broad authority
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under Title VII to fashion the most complete relief possible.”). To the contrary, Congress has committed to HUD the authority and responsibility to reform public housing agencies that receive federal funding. And to that end, it has established extensive remedies for HUD to aggressively address deficiencies in a public housing agency’s management or the conditions of its housing. This Court has already discussed the concerns that the Proposed Consent Decree raises with respect to separation of powers and the delegation of equitable judicial authority. But the incongruity between the Complaint and the Proposed Consent Decree also raises doubts as to the legitimacy of any judicial imprimatur on the proposed decree. In particular, the Complaint asserts a “claim” under Section 6(j) of the U.S. Housing Act based on NYCHA’s violations of its obligations under its Annual Contributions Contract, which incorporates federal lead-paint safety regulations and its obligation under 24 C.F.R. § 5.703 to provide decent, safe, and sanitary housing. While the Proposed Consent Decree in some general sense requires NYCHA to comply with these regulations, the Government has made clear that the focus of the proposed decree is a monitorship structured entirely by the parties. Cf. Firefighters, 478 U.S. at 536, 540 (Rehnquist, J., dissenting) (questioning whether a consent decree “may be structured almost entirely by the parties, even though the statute which the decree enforces may not authorize any such relief . . .” and expressing the view that the scope of a consent decree is “properly restrain[ed] . . . to that of implementation of the federal statute pursuant to which the decree is entered”).
Questions of judicial legitimacy aside, the adversarial positions the parties have staked after signing the proposed decree and during the pendency of the motion for approval also portend this Court’s de facto conscription into superintending NYCHA indefinitely—a role that judges are ill-equipped to assume. See Clinton, 999 F.2d at 326 (noting that “[f]ederal courts operate according to institutional rules and procedures that are poorly suited to the management
46

Case 1:18-cv-05213-WHP Document 64 Filed 11/14/18 Page 47 of 52

of state agencies”). In particular, the Government’s moving papers claim that NYCHA has already defaulted on its obligations to comply immediately with lead-safe work practices under paragraph 67 of the Proposed Consent Decree. (Gov’t Brief, at 13-16.) NYCHA disputes that it violated the proposed decree, claiming that its efforts to comply had preceded the signing of the proposed decree and accelerated after that. (NYCHA Brief, at 4 n.11; Folch Decl. Ex. C.) In a similar vein, the Government has criticized NYCHA’s unilateral appointment of a NYCHA insider who never previously worked in a compliance department as Chief Compliance Officer without consulting the Government. (Gov’t Brief, at 17.) Though not outside the letter of the Proposed Consent Decree—which only requires that the Chief Compliance Officer be appointed in consultation with the monitor—NYCHA’s counsel conceded that this appointment was not in the spirit of the parties’ agreement. (Sept. 26, 2018 Hr’g Tr. at 176.) When pressed at oral argument, NYCHA’s counsel contended that the proposed decree had not yet been approved and that NYCHA believed that compliance work needed to continue.18 (Sept. 26, 2018 Hr’g Tr. at 175-77.)
Further, the parties’ divergent characterizations of the Proposed Consent Decree’s key provisions—the monitorship, according to the Government, and NYCHA’s obligations to follow the law, according to NYCHA—betray a disagreement over the monitor’s role that evokes shades of the “Peerless” case familiar to first-year law students. See Raffles v. Wichelhaus, 159 Eng. Rep. 375 (Ex. 1864). In addition to setting forth the general monitorship framework, the Proposed Consent Decree clarifies that the monitor “shall not be responsible for

18

NYCHA’s Interim Chair reportedly offered a more pointed response, stating “We are not in violation of the

consent decree. There is no way on this earth that I was going to wait for the monitor’s arrival to put a compliance

officer in place.” See Greg B. Smith, Pol rips de Blasio appointment of political insider to monitor NYCHA safety

compliance, N.Y. Daily News (Aug. 21, 2018), http://www.nydailynews.com/new-york/ny-metro-nycha-

compliance-violation-20180820-story.html. Of course, whatever urgency NYCHA’s Interim Chair perceived, the

unilateral nature of NYCHA’s action undercuts the collaborative atmosphere the parties say they are cultivating.

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NYCHA’s day-to-day operations.” (Proposed Consent Decree ¶ 35.) Aside from this limitation, there is much room for disagreement as to the monitor’s role. (Cf. July 10, 2018 Hr’g Tr. at 8 (statement by Government counsel noting the uncertainty in the degree to which the monitor’s operations will be integrated with NYCHA’s current infrastructure and acknowledging that “as people apply or suggest that they should be monitor, they have different ideas and structures for what they would bring to that process”).) In sum, the parties’ statements on the record and subsequent public sniping tell a tale of two monitors.
The Government has consistently described the monitorship as the “centerpiece” of the proposed decree whose role is not simply to monitor compliance with the decree, but to “direct NYCHA to make overarching organizational and work force changes and to take specified steps to achieve health and safety improvements,” including directing NYCHA to perform work through independent contractors, entering into contracts on NYCHA’s behalf, and creating Performance Requirements and various organizational and operational plans. (Gov’t Brief, at 1; see, e.g., Sept. 26, 2018 Hr’g Tr. at 151-52 (representing that the monitor will “help NYCHA fix its problems and, where necessary, step in to fix them”); July 10, 2018 Hr’g Tr. at 6 (describing the monitor as “not your ordinary monitor in some significant respects” and that the monitor has “its own authority laying out plans for improving NYCHA and for reorganizing the organization”).) While NYCHA’s papers say little about how it envisions the monitor’s role, its counsel’s statements at the fairness hearing suggest a constrained view of the monitor as merely facilitating collaboration and providing increased accountability. (See Sept. 26, 2018 Hr’g Tr. at 177, 180-81.) Given NYCHA’s active deceit of federal regulators, however, whether such a passive role can assure any meaningful accountability is doubtful.
The public skirmishing between NYCHA’s Interim Chair and the U.S. Attorney
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reveals the wide chasm between the parties’ expectations for the monitor. Only two weeks after NYCHA’s tenants testified at length about the need for greater oversight, NYCHA’s Interim Chair—who was nowhere to be found during the public testimony by tenants—expressed his concerns “about what could be a creeping monitorship that’s more in the operational mode, as opposed to a monitor who monitors.” Janaki Chadha, Brezenoff raises doubts about NYCHA monitor under federal consent decree, Politico (Oct. 10, 2018), https://www.politico.com/states/ new-york/city-hall/story/2018/10/10/brezenoff-raises-doubts-about-nycha-monitor-underfederal-consent-decree-642333. He also criticized the proposed monitorship “because it’s much more actively constructed, where there’s more of a management role, at least in vision,” calling it “a prescription for difficulty, if not disaster.” He lamented that when he signed the proposed decree, he “saw it as more of a monitorship, and in some of the interactions that are going on, [he] see[s] the possibility that others might have a different view.” One of these “others” is the U.S. Attorney, who retorted that NYCHA’s Interim Chair “should be getting on board with the monitorship he signed off on” and that NYCHA’s belated resistance to anything more than a milquetoast monitor was “not a smart move.” See Nolan Hicks, Feds blast top NYCHA management as a ‘real disaster’, N.Y. Post (Oct. 30, 2018), https://nypost.com/2018/10/30/fedsblast-top-nycha-management-as-a-real-disaster.
In the end, NYCHA may be correct that whatever sluggishness the Government perceives in NYCHA’s efforts to comply with the lead-safe work practices requirement does not fall outside the letter of the Proposed Consent Decree. And it may be that NYCHA’s haste to appoint a compliance officer does not logically violate a decree that has yet to be judicially approved. Such actions, however, evince a troubling propensity for NYCHA to do what it wants, when it wants. The point is that NYCHA’s unilateral actions and statements decrying the
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monitor’s role while this Court considers whether to approve the proposed decree—a time in which one would expect NYCHA to be on its best behavior—unearth fissures in the parties’ collaborative front and foreshadow the beginning of prolonged judicial management of NYCHA through a monitorship whose costs may be limitless.
Ultimately, whether the parties choose to address this public emergency through a judicially managed consent decree, a receivership under the U.S. Housing Act, or in some other way, it appears that half-measures that merely maintain the status quo while shielding the powers-that-be from politically unpalatable solutions are doomed to fail. As discussed, HUD is not blameless. The City’s equivocal role in this settlement also bears mention. It is a non-party claiming to be bound only by its funding obligations while also maintaining that it has no legal obligation to provide any funds at all. At the same time, the City’s Corporation Counsel extolled the “unprecedented” nature of the proposed decree’s “item by item” negotiation that personally involved Corporation Counsel, the U.S. Attorney, and the Mayor of the City. (July 10, 2018 Hr’g Tr. at 44.) Indeed, New York law puts the City much closer to the center of the action in granting the Mayor the power to control NYCHA by appointing its chairperson and board, who serve at his pleasure. Paige v. N.Y.C. Hous. Auth., 2018 WL 3863451, at *13 (S.D.N.Y. Aug. 14, 2018) (citing N.Y. Pub. Hous. Law § 402(3)). Finally, the State of New York lurks in the wings with $550 million that may help fund NYCHA’s capital needs. The Governor—having previously overhauled the Chicago Housing Authority during his tenure as HUD Secretary— may well understand better than others what is at stake.
To be sure, this Court shares the parties’ doubts that any solution will offer an immediate panacea, in large part due to NYCHA’s crippling $31.8 billion capital deficit and its inexplicable dysfunction in leaving untouched hundreds of millions of dollars allocated to it by
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the City. But desperate times call for desperate—and sometimes politically unpopular— measures, whether that be exploring public-private housing partnerships, infill development, or the sale of air rights. Other measures may be necessary and even less palatable, such as replacing NYCHA’s management or abrogating collective-bargaining agreements and vendor contracts. Any of these measures requires political will at all levels, from the HUD Secretary, to the Governor, to the Mayor, and to NYCHA’s Interim Chair. The well-being of more than 400,000 New Yorkers depends on it.
CONCLUSION This Court does not reject the Proposed Consent Decree lightly. The rejection of this decree will likely delay sorely needed relief for NYCHA tenants while the parties decide whether to re-negotiate, seek administrative remedies, litigate, or appeal, and a court’s refusal to accept a proposed consent decree may have “practical consequences for the government’s ability to negotiate future settlements.” Microsoft Corp., 56 F.3d at 1456. But as it stands, the proposed decree suffers from fatal procedural flaws, including its formless injunctive relief and enforcement mechanisms. The proposed decree also raises serious concerns implicating the separation of powers and the delegation of equitable judicial power, which appear attributable at least in part to the parties’ sidestepping of the existing statutory scheme to address public housing failures. And on a more basic level, the nature of the claims asserted by the Government raises questions as to the scope and applicability of Citigroup. Any judicial decree entered in this action will have a direct, tangible, and longlasting impact not only on the parties, but most importantly on NYCHA’s tenants. Because the Proposed Consent Decree is not fair and reasonable, and because its entry would disserve the public interest, the Government’s motion for approval is denied. The parties are directed to
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Case 1:18-cv-05213-WHP Document 64 Filed 11/14/18 Page 52 of 52 submit a joint status report by December 14, 2018 detailing their respective positions on how they wish to proceed. That status report should also advise this Court regarding NYCHA’s compliance to date with its obligations under paragraphs 67-70 of the Proposed Consent Decree. The Clerk of Court is directed to terminate the motion pending at ECF No. 43. Dated: November 14, 2018
New York, New York SO ORDERED: _______________________________ WILLIAM H. PAULEY III U.S.D.J.
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 Case 1:18-cv-05213-WHP Document 74 Filed 02/01/19 Page 1 of 2

[Type text]

U.S. Department of Justice

United States Attorney

2

Southern District of New York

86 Chambers Street New York, New York 10007
January 31, 2019

By ECF Hon. William H. Pauley III U.S. District Court Judge U.S. Courthouse 500 Pearl Street, Room 1920 New York, New York 10007

Re: United States of America v. New York City Housing Authority, 18 Civ. 5213 (WHP)

Dear Judge Pauley:

We write on behalf of both parties to provide the Court a status report, as required by the Court’s January 18, 2019 Memorandum and Order.

Earlier today, the U.S. Department of Housing and Urban Development (“HUD”), the U.S. Attorney’s Office for the Southern District of New York, the New York City Housing Authority (“NYCHA”), and New York City (the “City”) signed an Agreement, the purpose of which is to “to remedy the deficient physical conditions in NYCHA properties, ensure that NYCHA complies with its obligations under federal law, reform the management structure of NYCHA, and facilitate cooperation and coordination between HUD, NYCHA, and the City during the term of [the] Agreement.” The Agreement calls for the appointment of a non-judicial monitor, and provides that within 14 days of appointment of the monitor, the United States Attorney’s Office will file appropriate papers to obtain dismissal without prejudice of the complaint in this matter.

Accordingly, the parties jointly request that the Court stay proceedings in this matter for forty-five days to allow for completion of the condition precedent to dismissal under the parties’ Agreement.

Case 1:18-cv-05213-WHP Document 74 Filed 02/01/19 Page 2 of 2 Page 2

cc: Debo Adegbile, Esq. Attorney for Defendant

Respectfully submitted,
GEOFFREY S. BERMAN United States Attorney Attorney for the United States
By: /s/ Robert William Yalen_______ ROBERT WILLIAM YALEN MÓNICA P. FOLCH JACOB LILLYWHITE TALIA KRAEMER SHARANYA MOHAN Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: (212) 637-2800 Fax: (212) 637-2702 Email: robert.yalen@usdoj.gov

Application granted. This action is stayed as set forth herein.

2/1/19

 
 Case 1:18-cv-05213-WHP Document 75 Filed 03/14/19 Page 1 of 3

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------- x

:

UNITED STATES OF AMERICA,

:

:

Plaintiff,

:

:

v.

:

:

NEW YORK CITY HOUSING AUTHORITY, :

:

Defendant.

:

:

--------------------------------------------------------------- X

18 Civ. 5213 (WHP)
ECF Case
NOTICE OF DISMISSAL WITHOUT PREJUDICE PURSUANT TO RULE 41(a)(1)(A)(i)

WHEREAS, on June 11, 2018, plaintiff United States commenced this action against

defendant New York City Housing Authority (“NYCHA”) pursuant to Section 6(j) of the U.S.

Housing Act of 1937, 42 U.S.C. § 1437d(j), on behalf of the U.S. Department of Housing and

Urban Development (“HUD”); pursuant to the Anti-Fraud Injunction Act, 18 U.S.C. § 1345; and

pursuant to the Toxic Substances Control Act, 15 U.S.C. §§ 2616, 2689, on behalf of the U.S.

Environmental Protection Agency (“EPA”);

WHEREAS, the complaint alleges, among other things, that NYCHA has failed to

provide decent, safe and sanitary housing as required by HUD regulations; has failed to comply

with HUD and EPA lead paint safety regulations; and has misled HUD regarding relevant

matters;

WHEREAS, HUD, New York City, and NYCHA entered an agreement (the

“Agreement.” attached hereto as Exhibit A), effective as of January 31, 2019, the purpose of

which is to “to remedy the deficient physical conditions in NYCHA properties, ensure that

NYCHA complies with its obligations under federal law, reform the management structure of

Case 1:18-cv-05213-WHP Document 75 Filed 03/14/19 Page 2 of 3
NYCHA, and facilitate cooperation and coordination between HUD, NYCHA, and the City during the term of [the] Agreement”;
WHEREAS, pursuant to the Agreement, among other things, NYCHA agrees that it will meet specified compliance requirements for lead paint and other health and safety issues; that it will establish a compliance department, an environmental health and safety department, and a quality assurance unit; that a monitor (the “Monitor”) will be appointed; and that the Monitor, HUD, EPA, and the U.S. Attorney’s Office will have certain oversight roles, all as specified in the Agreement;
WHEREAS, the Agreement provides that within 14 days of the appointment of the Monitor, this Office will file appropriate papers to obtain dismissal of this action without prejudice;
WHEREAS, in the Agreement, NYCHA agrees not to object to a motion to reinstate any count of the complaint in the event of breach of the Agreement by NYCHA;
WHEREAS, the Monitor was appointed on February 28, 2019; WHEREAS, pursuant to Rule 41(a)(1)(A)(i), an action may be dismissed without prejudice by notice, without stipulation or order of Court, when the defendant has not yet answered the complaint nor served a motion for summary judgment; WHEREAS, NYCHA has neither answered the complaint nor served a motion for summary judgment; and WHEREAS, in light of the relief obtained in the Agreement, the United States wishes to dismiss the complaint without prejudice;
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NOW, THEREFORE, PLEASE TAKE NOTICE that pursuant to Rule 41(a)(1)(A)(i): 1. The United States hereby dismisses the complaint in this action without prejudice.
Dated: March 14, 2019 New York, New York
GEOFFREY S. BERMAN United States Attorney for the Southern District of New York
By: /s/ Robert William Yalen ROBERT WILLIAM YALEN MÓNICA P. FOLCH JACOB LILLYWHITE TALIA KRAEMER SHARANYA MOHAN Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: (212) 637-2800 Fax: (212) 637-2702 Email: robert.yalen@usdoj.gov monica.folch@usdoj.gov jacob.lillywhite@usdoj.gov talia.kraemer@usdoj.gov sharanya.mohan@usdoj.gov
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AGREEMENT

This Agreement is entered into this 31st day of January 2019, by and between the U.S. Department of Housing and Urban Development (“HUD”), the New York City Housing Authority (“NYCHA”), and New York City (“the City”).

1.

Recitals

2

II. Definitions

3

III. Applicability

4

IV. Monitorship

5

A. Selection and Costs

5

B. General Powers

6

C. Reporting

6

D. Community Engagement

7

E. Coordination

7

V. Compliance Requirements and Action Plans

7

VI. Institutional Changes

9

A. Change in Leadership

9

B. Organizational Plan

10

C. Compliance Department

12

D. Environmental Health and Safety Department

13

E. Quality Assurance Unit

13

F. PHAS Inspections

14

VII. City funding

16

VIII. Regulatory Relief

20

IX. HUD Actions

20

X. force Majeure

20

XI. Notices

21

XII. Effective Date

22

XIII. Modification

22

XIV. Termination

23

XV. Dispute Resolution

23

XVI. Enforcement

23

XVII. Effect of Agreement; Waiver

25

XVIII. Litigation Claims

27

XIX. Signatories/Service

27

XX. Integration

27

XXI. Information Collection and Retention

27

XXII. June 11,2018 Consent Decree

2$

XXIII. Construction and Severability

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Recitals
1. WHEREAS, tinder the United States Housing Act of 1937, as amended, 42 U.S.C.
§ 1437 et seq., HUD is responsible for administering low income housing
programs;
2. WHEREAS, NYCHA is a Public Housing Agency that receives federal financial assistance from HUD to administer its public housing program;
3. WHEREAS, NYCHA, in accordance with the Annual Contributions Contract and related regulations related to the grant effected pursuant to the Annual Contributions Contract, is required to, among other things, provide decent, safe, and sanitary housing for the public housing residents of New York City and comply with federal law protecting children from the hazards of lead poisoning;
4. WHEREAS, on June 11,2018, the United States filed a complaint in the United States District Cottrt for the Southern District of New York (the “Complaint”). The Complaint set forth the findings of the United States’ investigation, alleging, among other things, that NYCHA had routinely failed to comply with lead-based paint safety regLilations; had failed to provide decent, safe, and sanitary housing, including with respect to the provision of heat and elevators and the control and treatment of mold and pests; and had repeatedly misled HUD through false statements and deceptive practices;
5. WHEREAS, in a Consent Decree executed June 11, 2018, NYCHA made admissions regarding, among other things, deficiencies in physical conditions with respect to lead, mold, heating, elevators and pests, untrue statements to HUD regarding the conditions of NYCHA properties, and practices with regard to Public Housing Assessment System inspections;
6. WHEREAS, based on NYCHA’s misconduct as detailed in the Complaint, on January 31, 2019, the Secretary of HUD (the “Secretary”) declared that NYCHA is in substantial default within the meaning of Section 6(j)(3)(A) of the U.S.
Housing Act. See 42 U.S.C. § 1437d(j)(3)(A);
7. WHEREAS, MUD is not taking possession of NYCHA or appointing a receiver at this time. Rather, MUD has determined that the terms of this Agreement constitute an “arrangement[1 acceptable to the Secretary and in the best interests of the public hoLising residents. . . for managing aLl, or part, of the public housing administered by the agency or of the programs of the agency” within the meaning
of 42 U.S.C. § 1437d(j)(3)(A)(v);
8. WHEREAS, the purpose of this voluntary Agreement is to remedy the deficient physical conditions in NYCHA properties, ensure that NYCHA complies with its obligations tinder federal law, reform the management structure of NYCHA, and
7

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facilitate cooperation and coordination between HUD, NYCHA, and the City during the term of this Agreement; and

9. WHEREAS, the City agrees to provide the funding as set forth in Section VI.

10. WHEREAS, except as provided in this Agreement, NYCHA shall maintain control of its operations and shall be responsible for implementing the action plans described in this Agreement and meeting the physical conditions standards set forth in Exhibit A and Exhibit B;

11. WHEREAS, the United States Attorney’s Office for the Southern District of New York (“SDNY”) will, within 14 days of the appointment of the Monitor, file appropriate papers with the U.S. District Court to obtain dismissal, without prejudice, of the Complaint;

12. NOW, THEREFORE, HUD, NYCHA, and the City, in consideration for their mutual promises, agree to be legally bound. as follows:

II. Definitions

13. Whenever the terms set forth below are ctsed in this Agreement, the following definitions shall apply:

a. “Action Plan” shall have the meaning provided in paragraph 35.

b. “Agreement” means this Agreement.

c.

“Board” means the board of NYCHA, including all of its members.

d. “Chair” or “NYCHA Chair” means the chairperson of NYCHA.

e. “Day” shall mean a calendar day unless expressly stated to be a business day. In computing any period of time under this Agreement, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day.

f.

“Effective Date” has the meaning provided in Section XII.

g. “EPA” means the U.S. Environmental Protection Agency.

h. “Housing Act” or “Act” means the U.S. Housing Act of 1937, set
forth at 42 U.S.C. § 1437d.

I.

“HUD” means the U.S. Department of Housing and Urban

Development.

j.

“Monitor” means the individual serving as Monitor pursuant to

Section Ill of this Agreement, as well as his or her consultants,

3

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staff, or designees, except where expressly provided otherwise in this Agreement.

k. “Paragraph” shalt mean a portion of this Agreement identified by an Arabic numeral, including subparts thereto.

1.

“Party” means HUD and NYCHA and, with respect to its

commitments under this Agreement, the City.

m. “Quarter” means each three-month period ending March 31, June 30, September 30, and December31 of each calendar year.

n. “Quarterly Report” means the reports described in paragraphs 25 to 26 of this Agreement.

o. “Secretary” shall mean the Secretary of the U.S. Department of Housing and Urban Development or his or her designee, who shall be the Deputy Secretary, the Assistant Secretary of the Office of Public and Indian Housing, or a Deputy Assistant Secretary in the Office of Ptiblic and Indian Housing.

p. “Section” shall mean a portion of this Agreement identified by a roman numeral.

q. “Work Plan” shall mean the set of compliance requirements, standards, and deadlines contained in the document set forth herein as Exhibit A and Exhibit B.

III. Applicability

14. The obligations of this agreement apply to apartment units, common areas, residential buildings, and building sites consisting of public housing owned or operated by NYCHA and receiving funding through Section 9 of the Housing Act.

15. If, dLIe to a conversion program an apartment unit, common area, residential building, or building site is no longer operated by NYCHA and receiving funds through Section 9 of the Housing Act, then the obligations of this agreement shalt no longer apply as to those conversions as of the closing of the applicable transaction, except that, with regard to transactions closed more than six months after the Effective Date, NYCHA shall ensure that, during the construction period, the project developer abates lead-based paint in compliance with the lead
abatement standards of 24 C.F.R. § 35.930(d), regardless of the dollar value of
rehabilitation, following abatement, NYCHA shall provide to the Monitor a
clearance report pursuant to 24 C.F.R. § 35.1340(c).

4

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IV. Monitorship
A. Selection and Costs
16. After consultation with NYCHA and the City, HUD and SDNY shall require the City to appoint an individual selected by HUD and SDNY and chosen on the basis of merit to serve as the Monitor.
17. In the event that the individual serving as Monitor resigns or otherwise ceases to serve as Monitor, HUD and SDNY shall jointly designate a replacement Monitor. The replacement Monitor shall be an individual chosen on the basis of merit. KUD and SDNY will provide the City an opportunity to provide its views to with respect to possible replacement Monitors.
1 8. The Monitor may engage such staff, expert consultants, or other third-party contractors as he or she deems appropriate to use his or her powers fully and perform his or her responsibilities fully.
19. The Monitor shall submit an annual budget for the monitorship, including work, staff, expert consultants or other third-party contractors engaged by the Monitor, to HUD, SDNY, NYCHA and the City for approval.
a. Any dispute over the Monitor’s budget shall be submitted to the Secretary for final decision.
b. The Monitor’s approved annual budget shall be made publicly available.
c. Amendments to the budget shall proceed through the same process described in this paragraph.
d. The Monitor shall notify HUD, SDNY, NYCHA and the City when the Monitor has spent 75% of an approved annual budget.
e. If the Monitor exceeds the approved annual budget, the Monitor shall inform the City promptly after becoming aware of the overrun and shall submit to HUD, SDNY, NYCHA and the City a detailed explanation for the overrun, as well as a proposed amended budget reflecting the cost overrun and any other necessary adjustments pursuant to the process for amended budgets.
20. The City shall pay the approved costs of the monitorship. Such costs shall be in addition to the City Funding described in Section VII.
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B. General Powers
21. The Monitor, HUD, EPA and SDNY shall have, solely for the purposes of this agreement, full access to all information in NYCHA’s possession, including but not limited to data systems, documents, and materials, and they shall have full access to all programs, services, facilities, and premises under the control of NYCHA. Nothing herein limits the ability of HUD, EPA, and SDNY to use such information, once accessed, for any enforcement purpose. The Monitor, HUD, EPA and SDNY shall comply with any applicable federal law regarding personally identifiable information to which the Monitor, HUD, EPA and SDNY obtain access. This provision does not permit access to information protected by the attorney-client privilege or the attorney work product protection without NYCHA’s consent. Nothing in this Agreement will otherwise restrict or limit any existing rights to access of HUD, EPA or SDNY.
22. The Monitor may communicate with NYCHA officers, employees, contractors, managers, board members, or residents without notice to NYCHA and without NYCKA’s permission or presence, provided that such individuals shall not provide any information subject to the attorney-client privilege or attorney work product protection without NYCHA’s consent. NYCHA shall make any such individuals within its control available to the Monitor upon request.
23. The Monitor may communicate at his or her discretion with any Party, the public, NYCHA residents, and representatives of any federal, state, or local United States entity.
24. The Monitor shall not be responsible for NYCHA’s day-to-day operations. Nothing in this paragraph is intended to limit the powers of the Monitor otherwise granted under this Agreement.
C. Reporting
25. The Monitor shall submit a Quarterly Report, beginning after the first full quarter after the date of appointment, to HUD, EPA, and SDNY, setting out:
a. The work performed by the Monitor during the relevant period;
b. The extent to which NYCHA is complying with the Agreement, including Exhibit A and Exhibit B;
c. Objective data showing NYCHA’s progress toward achievement of the requirements in Exhibit A and Exhibit B; and
d. Any other information the Monitor may deem appropriate regarding matters covered by the Agreement.
26. The Quarterly Reports or a summary thereof shall be made publicly available on NYCHA’s website.
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27. NYCKA shall meet with the Monitor, HUD, EPA and SDNY (at their discretion) to review the Monitor’s Quarterly Reports and discuss strategies for improving NYCHA’s performance. In addition, upon request by HUD, EPA, or SDNY, the Monitor shall meet with them (individually or collectively) to review NYCHA’s performance under this Agreement, including to review the Monitor’s Quarterly Reports.
2$. The Quarterly Report issued five years from the Effective Date, and each Quarterly Report thereafter, shall include an assessment of whether NYCHA meets the Criteria for Termination, as described in paragraph $6.
B. Community Engagement
29. The Monitor shall engage with NYCHA stakeholders, including residents and resident groups, regarding matters related to the Agreement.
30. The Monitor shall periodically (but at least quarterly) convene a Community Advisory Committee, consisting ofNYCKA stakeholders such as NYCKA’s Resident Advisory Board; resident, community, and employee representatives; senior NYCHA managers; and other relevant stakeholders to solicit input regarding the achievement of the Agreement’s purpose.
31. The Monitor shall establish procedures for the Monitor to communicate with and solicit comment from residents, resident groups, and other NYCHA stakeholders outside of the Community Advisory Committee.
E. Coordination
32. The Monitor shall coordinate with any court-appointed officers addressing matters covered by this Agreement, including the Special Master appointed in Baezv. NYCHA,No. 13 Civ. 8916 (S.D.N.Y.).
V. Compliance Requirements and Action Plans
33. NYCHA will implement and achieve substantial compliance with the requirements of Exhibit A and Exhibit B by the deadlines set forth therein.
34. NYCHA shall cooperate in all respects with actions taken by the Monitor under this Agreement.
35. NYCKA will prepare Action Plans selling forth policies and practices to be adopted and specific actions to be taken by NYCHA to achieve the obligations set forth in Exhibit A and Exhibit B and comply with the terms of this Agreement.
36. NYCHA shall submit each such Action Plan to the Monitor, with a copy to HUD and SDNY, for approval on a schedule set by the Monitor. Upon receipt of a proposed Action Plan submitted by NYCHA, the Monitor shall approve or reject the Action Plan as submitted within a reasonable time. The Monitor shall consider
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public health and safety, cost, and other factors deemed relevant by the Monitor in reviewing a proposed Action Plan.
a. If the Action Plan is rejected, the Monitor shall inform NYCHA (in writing if so requested by NYCHA) of the reasons the Action Plan is rejected. NYCHA shall promptly submit a revised proposed Action Plan addressing the deficiencies in the original Action Plan identified by the Monitor.
b. If NYCHA is unable to submit a revised proposed Action Plan acceptable to the Monitor within 30 days of the rejection, the Monitor may submit a proposed revised Action Plan to NYCHA, HUD and SDNY. Within 21 days of submission of the Monitor’s proposal, NYCHA may submit comments on the proposal to HUD and SDNY. HUD and SDNY shall consider the Monitor’s proposal and NYCHA’s comments.
c. After considering the submissions and consultation with the Monitor, KUD (and, with respect to a revised proposed Action Plan implementing Exhibit A, SDNY) may approve the Monitor’s proposal, approve NYC HA’s proposal, approve either proposal with modifications, or reject the proposals. NYCHA and the Monitor shall be provided with notice of and a reasonable opportunity to comment on any non-de minimis modifications to the proposals submitted before a modified proposal goes into effect.
d. Nothing in the foregoing shall prevent NYCHA from taking actions it determines are necessary in the interest of residents while approval of an Action Plan is pending.
37. An Action Plan shall set forth policies and practices to be adopted and specific actions to be taken by NYCHA to achieve sustained compliance with particular aspects of this Agreement. Each Action Plan shall include interim milestones to be achieved by specified completion dates for all obligations due more than 60 days from the date of the Action Plan. An Action Plan may include, among other things, changes to policies, procedures, systems, personnel and management structures.
3$. An Action Plan may set forth a methodology for catculating metrics contained in Exhibit A and Exhibit B, provided that such methodology is consistent with the terms of those Exhibits.
39. Any proposed revised Action Plan of the Monitor may direct NYCHA to select an independent contractor to perform work called for by an Action Plan. The Monitor shall give such direction through a revision to an Action Plan when the Monitor believes it is important to achieve or sustain NYCHA’s compliance with
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the Agreement, taking into consideration public health and safety, cost, and other factors deemed relevant by the Monitor. The selection of an independent contractor pursuant to this paragraph shall be through an open and public bidding process, consistent with applicable law, which shall detail the scope of work. NYCHA, in consultation with the Monitor, shall make the selection of an independent contractor based upon the contractor’s experience, skill, expertise, and the estimated time and cost of repairs.

40. NYCHA shall promptly adopt each approved Action Plan as its official policy, procedure and course of action and shall use best efforts to implement such Action Plan. The obligation to use “best efforts” with respect to Action Plans does not diminish NYCHA’s obligation to achieve substantial compliance with the requirements of Exhibit A and Exhibit B. An Action Plan shall not waive or affect any requirements of this Agreement, including Exhibit A and Exhibit B, which requirements shall be binding on NYCHA independently of any Action Plan.

41. NYCHA shall post each approved Action Plan on its public website.

42. The Monitor may direct NYCHA to submit, by a date certain, a replacement for or modification to any previously approved Action Plan. Such replacement or modified Action Plan will be subject to the process described in paragraphs 36 to 41.

43. At NYCHA’s request, the Monitor will consider whether a modification to one or more requirements of Exhibit A, Exhibit B, or an approved Action Plan wilt further the purposes of this Agreement. If the Monitor determines that modifying such requirement will further the purposes of the Agreement, the Monitor may propose such modification to HUD and SDNY (and EPA as to a modification to Exhibit A). If HUD and SDNY (in consultation with EPA as to Exhibit A) concur in a proposed modification, such modification will go into effect and be a binding part of this agreement.

VI. Institutional Changes

A. Change in Leadership

44. The City shall follow the following process to select a permanent Chair and CEO for NYCHA:

a.

By 30 days after the Effective Date, a list of candidates for the

position of Chair and CEO shall be jointly developed by the City,

HUD, and SDNY. Every candidate on the list shall be jointly

agreed to by the City, HUD, and SDNY. The City, HUD, and

SDNY shall have the opportunity to interview any candidates.

b. By the end of the 30 day period after the list of candidates is finalized, the City shall select a permanent Chair and CEO for

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NYCHA from the jointly-developed list of candidates. If the selected candidate accepts the position, the selected candidate will begin serving as NYCHA Chair and CEO within 30 days of the candidate’s selection, unless the candidate’s personal circumstances require the candidate to start at a later date. If a selected candidate does not accept the position, the City may choose another individual from the list of candidates for the position, and that individual will begin serving as NYCHA Chair and CEO within 30 days of the candidate’s selection, unless the candidate’s personal circumstances require the candidate to start at a later date. In the alternative, the City may choose to restart the selection process set forth in this paragraph 44, in which case a new joint list shall be developed within 30 days of the date the selected candidate declined the position.
c. The time periods in subparagraphs 44(a)-(b) shall, upon agreement by HUD, SDNY, NYCHA, and the City, be reasonably extended if extraordinary circumstances necessitate such an extension.
d. During the term of this Agreement, NYCHA’s Chair and CEO shall not be removed or replaced without the concurrence of KUD and SDNY.
e. During the term of this Agreement or ten years, whichever is shorter, any vacancy in this position shall be filled pursuant to the process set out in this paragraph.
B. Organizational Plan
45. No later than 60 days after the appointment of the Monitor, the City shall engage a third-party management consultant selected jointly by the City and the Monitor. The consultant shall examine NYCHA’s systems, policies, procedures, and management and personnel structures, and make recommendations to the City, NYCHA, and the Monitor to improve the areas examined.
a. The consultant shall have full access to all information in NYCHA’s possession not covered by the attorney-client privilege or attorney work product protection, including but not limited to data systems, documents, and materials, and they shall have full access to all programs, services, facilities, and premises under the control of NYCHA.
b. The City shall pay any costs and fees of the consultant.
c. The consultant’s scope of work shall be jointly developed by the Monitor, NYCHA, and the City.
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d. The consultant shalt deliver a final report and recommendations to the City, NYCKA, and the Monitor, with copies to HUD, EPA and SDNY, no later than a deadline to be set by the Monitor.
46. The Monitor and NYCHA collaboratively shall prepare an “Organizational Plan” setting forth changes to NYCKA’s management, organizational, and workforce structure (including work rules), and overarching policies necessary or appropriate to achieve sustained compliance with NYCHA’s obligations under this Agreement. The Organizational Plan may include, among other things, changes to the roles, responsibilities, authorities, and reporting lines of NYCHA’s Chair, General Manager, and Board. The Organizational Plan shall address the recommendations of the third-party management consultant and explain any deviations from those recommendations.
47. The proposed Organizational Plan shall be submitted to HUD, SDNY, and the City no later than six months from the receipt of the consultant’s report. After consultation with and concurrence by HUD and SDNY, the Organizational Plan shall be considered final.
48. If NYCHA and the Monitor are unable to agree on an Organizational Plan, then the Monitor shall develop his or her own Organizational Plan and shall provide copies of the plan to NYCHA, the City, HUD, and SDNY. The Monitor shall consider public health and safety, cost, and other factors deemed relevant by the Monitor in developing the Organizational Plan.
a. Within 21 days of submission of the Monitor’s proposal, NYCHA may make a submission regarding the proposal to HUD and SDNY. HUD and SDNY shall consider the Monitor’s proposal and NYCHA’s comments.
b. After considering the submissions and consultation with the Monitor, HUD and SDNY may approve the Monitor’s proposal, approve NYCHA’s proposal, approve either proposal with modifications, or reject the proposals. NYCHA and the Monitor shall be provided with notice of and a reasonable opportunity to comment on any non-dc minimis modifications to the proposals submitted before a modified proposal goes into effect.
49. Once an Organizational Plan has been approved, NYCHA shall promptly adopt it as its official policy, procedure and course of action and shall use best efforts to implement it.
50. Nothing in the foregoing shall prevent NYCHA from taking actions it determines are necessary in the interest of residents while approval of an Organizational Plan is pending.
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51. The Monitor and NYCHA may develop and issue a replacement for or modification to any previously approved Organizational Plan. Paragraphs 47 through 49 shall apply to such replacement or modification.

52. NYCHA shall report in writing to the Monitor, HUD, and SDNY on its compliance with the Organizational Plan sixty days after it is issued, and every sixty days thereafter until the Organizational Plan is fully implemented.

C. Compliance Department

53. No later than 45 days after the appointment of the Monitor, NYCHA, in consultation with the Monitor, shall establish and maintain a Compliance Department that will serve the foltowing functions:

a. Overseeing NYCHA’s regulatory compliance with regard to federal, state, and local obligations.

b. Ensuring the accuracy of external reporting and statements by NYCHA.

c. Ensuring that NYCHA management and staff receive appropriate compliance training.

d. Maintaining a forum for employee, contractor, and resident complaints (including anonymous complaints) regarding compliance issues, and taking action on such complaints as appropriate.

e. Ensuring the integrity of PHAS and other inspections at NYCHA.

f.

Advising the Environmental Health and Safety Officer (described

below) of any information obtained by the Compliance Department

that relates to environmental health and safety issues.

g. Coordinating with the Environmental Health and Safety Officer regarding issues that impact both compliance and environmental health and safety.

Ii. Reporting to the Monitor regarding any compliance issues identified during the term of the Agreement.

54. The Compliance Department shall be headed by a Chief Compliance Officer appointed by NYCHA with the concurrence of the Monitor, after providing HUD and SDNY an opportunity to comment. Except insofar as otherwise provided in the Organizational Plan, the Chief Compliance Officer shall report directly to NYCHA’s Chair.

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B. Environmental Health and Safety Department

55. No later than 45 days after appointment of the Monitor, in consultation with the Monitor, NYCHA shall create an Environmental Health and Safety Department that will serve the following functions:

a. Analyzing, overseeing, and improving environmental health and safety at NYCKA, which shall include but not be limited to issues relating to lead-based paint, mold, heating, pests, elevators, air quality, and other aspects of NYCKA’s physical environment that affect residents’ health or safety.

b. Reporting to NYCHA’s senior management and Board on environmental health and safety issties.

c. Making recommendations to NYCHA’s senior management and Board for improvement and correction of any environmental health and safety issues at NYC HA.

d. Communicating with the public and stakeholders regarding environmental health and safety issues, including by maintaining a forum for employee and resident complaints (including anonymous complaints) regarding environmental health and safety issues.

e. Advising the Chief Compliance Officer of any information obtained by the Environmental Health and Safety Department that relates to regulatory compliance.

f

Coordinating with the Chief Compliance Officer regarding issues

that impact both compliance and environmental health and safety.

g. Ensuring the proper application of lead paint interim controls and proper abatement of lead paint.

56. The Environmental Health and Safety Department shall be headed by an Environmental Health and Safety Officer appointed by NYCHA with the concurrence of the Monitor, after providing HUD and SDNY an opportunity to comment. Except insofar as otherwise provided in the Organizational Plan, the Environmental Health and Safety Officer shall report directly to NYCHA’s Chair.

E. Quality Assurance Unit

57. No later than 45 days after appointment of the Monitor, in consultation with the Monitor, NYCHA shall create a Quality Assurance Unit that will serve the following functions:

a. Identifying maintenance performance problems that are related to particular buildings, units, managers, or staff.

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b. Using available information and research tools, including workorder data, resident interviews, employee interviews, and site visits.

c. Considering both performance on individual work orders and also performance of maintenance repairs from the first identification of need to the ultimate correction of the problem (“end-to-end”).

d. Reviewing work performed by NYCHA in advance of PHAS inspections to determine whether that work was industry-standard quality.

e. Verifying and contributing to compliance with the Agreement insofar as the Agreement bears on maintenance work at NYCHA.

f.

Communicating with the public and stakeholders regarding quality

assurance issues, including maintaining a forum for employee and

resident complaints (including anonymous complaints), regarding

quality assurance issues.

g. Providing relevant Quality Assurance Unit findings to NYCHA managers, including the General Manager, and (during the term of the Agreement) to the Monitor, SDNY, and HUD.

5$. The Quality Assurance Unit shall be headed by a Quality Assurance Officer appointed by NYCI-IA with the concurrence of the Monitor, and after providing HUD and SDNY an opportunity to comment. Except insofar as otherwise provided in the Organizational Plan, the Quality Assurance Officer shall report directty to NYCHA’s General Manager.

59. No later than 60 days after the appointment of the Monitor, NYCHA shall provide the HUD, SDNY, and the Monitor with a certification of compliance with paragraphs 53 to 59.

F. PHAS Inspections

60. NYCHA wilt not use deceptive practices with respect to PHAS inspections, will make all improvements in accordance with PIH Notice No. 2016-03, Uniform Physical Condition Standard (UPCS) Deficiencies and Industry Standard Repairs, July 11, 2016 or any subsequent or superseding guidance; will ensure that all maintenance repairs are performed to established industry standards and workmanship; and will ensure that properties meet HUD’s decent, safe, sanitary, and in good repair standards at all times.

61. NYCHA shall design internal controls to prevent deceptive practices including:

a. Covering up/hiding conditions.

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b. Performing substandard repairs.

c. Performing work in common areas after an inspection begins, other than for emergency health and safety issues.

d. Performing work in selected or alternate units after such units have been identified, other than for emergency health and safety issues.

62. NYCHA’s Chief Compliance Officer wilt be responsible for preventing deceptive practices with respect to PHAS investigations and ensuring compliance with HUD regulations and guidelines with respect to PHAS inspections. These responsibilities will include, but not be limited to:

a. Ensuring that training is provided to NYCHA employees on the regulations and guidelines with respect to PHAS inspections, including in particular the importance of not committing deceptive practices in PHAS inspections.

b. Routinely advising employees to report deceptive or otherwise improper PHAS practices to the Chief Compliance Officer.

c. Investigating such complaints as welt as forwarding such complaints to the HUD and SDNY, and otherwise as required by applicable law.

d. Working with the Quality Assurance Unit to identify instances of improper work in connection with a PHAS inspection; provided, however, that the QA Unit’s role is to identify maintenance needs and ensure the quality of work done throughout NYCHA throughout the year, and not to perform pre-PHAS maintenance itself.

e. Reviewing available data to identify any instances of improper work in connection with a PHAS inspection, including, but not limited to, those identified by the QA unit.

f

Recommending discipline for any managers or staff who conduct

deceptive practices in PHAS inspections.

g. Nothing in this section limits NYCKA residents’, NYCHA contractors’, or NYCHA employees’ ability to raise issues with any other federal, state, or local government entity.

h.

By ninety (90) days after the appointment of the Monitor, NYCHA

will submit an Action Plan to the Monitor for meeting the

requirements discussed in this Section (“P1-lAS Inspections”). This

Action Plan will be subject to the procedures of paragraphs 36-42.

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VII. City Funding
63. To assist NYCHA in its compliance with this Agreement, including Exhibit A and Exhibit B, and implementation of Action Plans adopted hereunder, the City agrees to provide financial support to NYCHA as follows:
a. to provide the capital funding to NYCHA through fiscal Year (“FY”) 2027 reflected in Exhibit C under the heading “Capital Items,” including allocations that flow to NYCHA developments through the Department of Housing Preservation and Development. NYCHA and the Monitor shall have maximum flexibility as provided by law with respect to the projects for which these funds are titilized. Nothing in this paragraph shall be construed as authorizing the shifting of funds from a particular initiative or project to another initiative or project;
b. to provide the annual operating funds to NYCHA through fY 2027 reflected in Exhibit C under the heading “Expense Items.” NYCHA and the Monitor shall have maximum flexibility as provided by law with respect to the projects for which these funds are utilized. Nothing in this paragraph shall be construed as authorizing the shifting of funds from a particular initiative or project to another initiative or project;
c. to not impose new or increased payment requirements or fees on NYCHA except for payments such as water fees imposed uniformly on New York City landlords;
d. in addition to the funding in subparagraphs (a) and (b) above, to provide a total of$1 .0 billion in funding for capital expenses as provided in an Action Plan over the four fiscal years following the Effective Date of this Agreement; and
e. to provide, for the duration of the Agreement or for at least each of the six fiscal years after the first four fiscal years following the Effective Date of this Agreement, whichever is later, an additional $200 million per year in funding for capital expenses as provided in an Action Plan to NYCHA in addition to the funding in subparagraphs (a) and (b) above.
64. If this Agreement is terminated pursuant to section XIV of this Agreement, or in the event the Secretary exercises his authority under Section 6(j) of the Housing Act as described below, the City’s funding obligations shall be affected as follows:
a. If the Agreement is terminated pursuant to the provisions of section XIV, the City’s funding obligations under subparagraphs 63(a)-(e) of this Agreement shall not be affected.
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b. If the Secretary exercises his authority under 42 U.S.C.
§ 1437d(j)(3)(A)(iv) to take possession of a portion of NYCHA’s
public housing program following a recommendation of the Monitor, and the subsequent concurrence of NYCHA’s CEO, for the limited purpose of(1) abrogating any contract to which the United States or an agency of the United States is not a party that, in the written determination of the Secretary (which shall include the basis for such determination), substantially impedes correction of the substantial default, and after the Secretary determines that reasonable efforts to renegotiate such contract have failed,
pursuant to 42 U.S.C. § 1437d(j)(3)(D)(i)(I); and/or (2) directing
NYCHA not to comply with any State or local law relating to civil service requirements, employee rights (except civil rights), procurement, or financial or administrative controls that, in the Secretary’s written determination (which shall include the basis for such determination), substantially impedes correction of the
substantial default, pursuant to 42 U.S.C. § 1437d(j)(3)(D)(i)(V),
then the City’s funding obligations under subparagraphs 63(a)-(e) of this Agreement shall not be affected.
c. The Monitor’s recommendation under subparagraph 64.b must state in writing the basis for the Monitor’s belief that such contract substantially impedes correction of the substantial default and that reasonable efforts to renegotiate such contract have failed and/or that a State or local law substantially impedes comptiance with this Agreement. Prior to making the recommendation, the Monitor must have described the contract, state or local law in a quarterly report and explained the manner in which the Monitor believes such contract, state or local law impedes correction of the substantial default. The Monitor’s recommendation shall specifically explain any potential impact on the overall operations of NYC HA and any potential disruption to NYCHA residents, and shall consider public health and safety, cost, and such other factors deemed relevant by the Monitor.
d. The CEO may non-concur with the Monitor’s recommendation if the CEO determines that the action recommended by the Monitor is not in the best interest of NYCHA residents. In such circumstance, the CEO shalt provide to the Monitor and the Secretary a written determination of non-concurrence and the reasons for the non-concurrence.
e. If the Secretary, without a recommendation of the Monitor and concurrence of the CEO, exercises his authority under 42 U.S.C.
§ 1437d(j)(3)(A)(iv) to take possession of a portion of NYCHA’s
public housing program for the limited purpose of(I) abrogating any contract to which the United States or an agency of the United
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States is not a party that, in the written determination of the Secretary (which shall include the basis for such determination), substantially impedes correction of the substantial default, and after the Secretary determines that reasonable efforts to renegotiate such contract have failed, pursuant to 42 U.S.C.
§ I 437d(j)(3)(D)(i)(I); and/or (2) directing NYCHA not to comply
with any State or local law relating to civil service requirements, employee rights (except civil rights), procurement, or financial or administrative controls that, in the Secretary’s written determination (which shall include the basis for such determination), substantially impedes correction of the substantial
default, pursuant to 42 U.S.C. § 1437d(j)(3)(D)(i)(V), then the
City’s funding obligations under subparagraphs 63(a)-(e) of this Agreement shall terminate.

f.

If the Secretary exercises his or her authority to (I) solicit

competitive proposals from other public housing agencies or

private housing management agents to manage all or substantially

alt of NYCHA or take any action under 42 U.S.C.

§ I 437d(j)(3)(A)(i); (2) petition the United States District Court for

the appointment of a receiver or take any action under 42 U.S.C.

§ I437d(j)(3)(A)(ii); (3) solicit competitive proposals from other

public housing agencies or any private entities to oversee

NYCHA’s Capital fund or take any action under 42 U.S.C.

§ 1437d(j)(3)(A)(iii); (4) take possession of all or part of NYCHA

under 42 U.S.C. § I 437d(j)(3)(A)(iv), other than as provided above
in subparagraphs 64.b to 64.d; or (5) require NYCHA to make

arrangements under 42 U.S.C. § l437d(j)(3)(A)(v) other than this

Agreement or modifications to this Agreement made pursuant to

section Xlii, then the City’s funding obligations under

subparagraphs 63.a though 63.e of this Agreement shall terminate.

65. The City’s fLinding obligations under this Agreement shall not be reduced by any funding provided by any other sources (including Borough President or City Council funds). The City shall not set off its obligation to pay funds under this Agreement against any funds that may now or in the future be due from NYCKA to the City, nor shall it exercise any right of recoupment related thereto.

66. Subject to the following paragraph 67, the funding pursuant to subparagraphs (d) and (e) of paragraph 63 shall be provided by the City to NYCHA as follows: the Monitor (or NYCHA at the Monitor’s direction) will submit a project description and scope of work to the City’s Office of Management and Budget (“0MB”). 0MB shall approve this submission if the funds requested are within the dollar amounts described in subparagraphs (d) and (e) of paragraph 63. Subsequent to approval, NYCHA will submit the corresponding contracts to the City Comptroller for registration to the extent required by law.

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67. In the event that the total amount of funds provided by the City pursuant to subparagraphs (a), (b), (d), and (e) of paragraph 63 have not been paid by the City to NYCHA during the time periods described in those subparagraphs, the unpaid amounts will be carried over and added to the funds available to NYCHA in the immediately following fiscal year and, to the extent unspent in the next fiscal year, shall continue to be carried over and added to each subsequent fiscal year until spent.
68. Neither the Monitor nor NYCHA shall use City capital funds for other than capital projects.
69. NYCHA and the Monitor may request, in light of capital funds provided by the City under paragraph 63, that HUD reptirpose HUD capital funds for use for noncapital purposes.
70. All funds described in subsections (d) and (e) of paragraph 63 shall be spent only pursuant to an Action Plan approved by the Monitor and designed to meet NYCHA’s obligations under the Agreement, and work paid for by such fttnds shall be performed under the direction of the Chair and General Manager subject to the terms of this Agreement.
71. Nothing in this Agreement precludes the City, at its exclusive option or as otherwise provided by law, from authorizing additional capital funding for NYCHA.
72. In the event that an undue financial hardship results in the City’s financial inability to pay the full amount purstiant to paragraph 63, the City shall submit to the Monitor, HUD, SDNY, and NYCHA, within 45 days of the Monitor’s request, a certification signed by the Mayor of the City and the City Comptroller setting forth that the City is unable to pay the entire amount requested, providing in detail the amount the City has the financial ability to pay (“Available Amount”), a description of the causes and extent of the undue financial hardship, and an explanation as to how the Available Amount was determined. The certification shall include a date when the City will be able to make available more or all of the funds due. If the City is unable to provide such a date in the certification, the City shall provide a certification every 90 days tintil it is able to provide a date (“Future Availability Date”) by which it will make available more or all of the remaining funds (collectively, the “Unpaid Amount”). The City will pay the Available Amount as provided in paragraph 63. If the City and HUD (after consultation with SDNY) agree that there exists undue financial hardship on the part of the City, then NYCHA or the Monitor may seek a modification of applicable Action Plans or other obligations pursuant to paragraph 85.
73. In any dispute regarding the existence and amount of undue financial hardship within the meaning of paragraph 72, the City shall bear the burden of proof.
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VIII. Regulatory Relief
74. The Monitor shall assist NYCHA in seeking such regulatory relief from HUD, the City of New York, and the State of New York, as he or she deems is necessary for NYCHA to comply expeditiously and in a cost-effective manner with its obligations under this Agreement.
75. HUD shall consider any requests under paragraph 74 in accordance with all applicable legal requirements and principles of administrative procedure. Nothing in this Agreement limits HUD’s discretion in considering such requests. HUD and NYCHA shall create a working group on regulatory relief in order to further the purposes of this Agreement. This working group shall facilitate the prompt response to NYCHA’s waiver requests. HUD shall endeavor to respond to NYCHA’s pending waiver requests within a reasonable tirneframe from the Effective Date of this Agreement.
IX. HUD Actions
76. HUD agrees to continue providing public housing operating and capital funds to NYCHA in accordance with its rules and regulations, including the funding formulas for operating and capital funds. In accordance with these rules, regulations and formulas, HUD will not offset or reduce the formula grants by the amount of the funds the City is providing to NYCHA pursuant to this Agreement.
77. HUD, in its discretion, may provide available technical assistance to NYCHA to facilitate compliance with the Work Plan.
78. HUD agrees to support NYCHA’s Section 8 conversion programs known as PACT, as permitted by law.
X. Force Majeure
79. “Force Majeure,” for purposes of this Agreement, is defined as any event arising from causes beyond the control of NYCHA that delays or prevents the performance of any obligation under this Agreement despite NYCI-IA’s best efforts to fulfill the obligation. The requirement that NYCHA exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force Majeure event and best efforts to address the effects of any potential force Majeure event (a) as it is occurring and (b) following the potential Force Majeure, such that the delay and any adverse effects of the delay are minimized. “Force Majeure” does not include NYCHA’s financial inability to perform any obligation under this agreement.
80. If any event occurs or has occurred that may delay the performance of any obligation under this Agreement that NYCHA or the City intends to assert was caused by a force majeure event, NYCHA or the City shall provide notice to the Monitor, HUD, EPA and SDNY (if the event affects the performance of requirements contained in Exhibit A or Action Plans implementing Exhibit A)
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within 30 days of when NYCHA or the City first knew that the event might cause a delay and provide NYC HA or the City’s rationale for attributing such delay to a force majeure event. The Monitor, KUD, EPA or SDNY may request further information about the assertion of force majeure.

81. If HUD and, if the event affects the performance of requirements contained in Exhibit A or Action Plans implementing Exhibit A, SDNY agree that the delay or anticipated delay is attributable to a force majeure event, the time for performance of the obligations under this Agreement that are affected by the force majeure event will be extended for such time as is necessary to complete those obligations in light of the force majeure event. An extension of the time for performance of the obligations affected by the force majeure event shall not, of itself, extend the time for performance of any other obligation. HUD and SDNY (if the event affects the performance of reqLlirements contained in Exhibit A or Action Plans implementing Exhibit A) will notify NYCHA and the City in writing of the length of the extension, if any, for performance of the obligations affected by the force majeure event.

XI. Notices

$2. Unless otherwise specified in this Agreement, whenever notifications, submissions, or communications are required by this Agreement, they shall be made in writing and addressed as follows:

As to MUD by mail:

Dane Narode U.S. Department of MUD Office of General Counsel 1250 Maryland, Aye, SW, Suite 200 Washington, DC 20024

As to HUD by email:

dane.m.narodehud.gov

As to SDNY by mail:

Robert William Yalen, AUSA U.S. Attorney’s Office 86 Chambers St., 3rd Floor New York, NY 10007

As to SDNY by email:

robert.yalen@usdoj.gov rnonica.folchusdoj.gov jacob.lillywhite@usdoj.gov talia.kraemer@usdoj.gov sharanya.mohanusdoj .gov

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As to NYCHA by mail:
As to NYCHA by email: As to the City by mail: As to the City by email: As to EPA by mail: As to EPA by email:

Vito Mustaciuolo General Manager New York City Housing Authority 250 Broadway New York, NY 10007
Debo P. Adegbile Wilmer Cutler Pickering Hale & Dorr LLP 7 World Trade Center New York, NY 10007
vito.mustaciuolo@nycha.nyc.gov debo.adegbile@wilmerhale.com
Zachary W. Carter Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007
zcarter@law.nyc.gov
Chief, Pesticide and Toxic Substances Branch U.S. EPA 2890 Woodbridge Avenue Edison, NJ 08837
gorman.john@epa.gov

83. HUD, EPA. SDNY, NYCHA and the City may, by written notice to the others, change its designated notice recipient or notice address provided above.
XII. Effective Date
84. This Agreement shall become effective upon execution.
XIII. Modification
85. The terms of this Agreement may be modified only by a subsequent written agreement signed by HUD (with the concurrence of SDNY), NYCHA, and the City.

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XIV. Termination
86. The Criteria for Termination are that:
a. NYCHA has been in substantial compliance with its obligations under this Agreement for at least the prior twelve months; and
b. NYCHA is willing and able, following termination, to comply with applicable laws.
87. If, at any time more than five years after the Effective Date, NYCHA believes that it has satisfied the Criteria for Termination set forth in paragraph 86, then it may file a written request with HUD to terminate all or parts of this Agreement. If HUD after consultation with SDNY (and EPA, as to Exhibit A) agrees that NYCHA has satisfied the Criteria for Termination, with respect to the entire Agreement or with respect to the particular provisions sought to be terminated, then, within 10 days of making that determination, HUD will agree to terminate all or parts of the Agreement; provided, however, that to the extent the request for termination relates in whole or part to the requirements of Exhibit A, HUD and SDNY shall jointly decide whether the Criteria for Termination are met. If HUD (or HUD and SDNY in the case of Exhibit A) determines that one or more of the Criteria for Termination are unsatisfied, then HUD (or HUD and SDNY jointly in the case of Exhibit A) shall reject NYCHA’s request. In this event, HUD (or HUD and SDNY jointly in the case of Exhibit A) shall notify NYCHA in writing of the criteria which are unsatisfied.
$8. HUD may determine at any time and in its discretion to lift its determination of substantial default. Such event shall not terminate this Agreement.
XV. Dispute Resolution
89. If, at any time prior to the termination of this Agreement, the Monitor, HUD, or SDNY believes that NYCHA or the City is not in compliance with any obligation under this Agreement, HUD in consultation with SDNY shall consider whether such noncompliance may be addressed through informal dispute resolution, prior to pursuing Enforcement under Section XVI. If so, HUD, SDNY, the Monitor, NYCHA, and the City, as appropriate, shall make good faith efforts to meet and confer regarding a resolution of the dispute.
XVI. Enforcement
90. If the Monitor finds that NYCHA has failed to substantially comply with any of the requirements of this Agreement, including the procedural and substantive requirements in Exhibits A and B, or has failed to adopt or use best efforts to implement an Action Plan or Organizational Plan as required under the terms of this Agreement, then the Monitor may remedy such noncompliance as follows:
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a. The Monitor shall infomi NYCI-IA in writing of the noncompliance and provide NYCHA 30 days in which to correct the noncompliance or to propose a plan for achieving substantial compliance that is acceptable to the Monitor.
b. If NYCHA fails to correct the noncompliance within 30 days, fails to propose a plan for achieving substantial compliance that is acceptable to the Monitor within 30 days, or fails to comply with a plan for achieving substantial compliance approved by the Monitor, the Monitor may propose a remedial directive requiring NYCHA to take specific action correct the noncompliance, which actions may include, but are not limited to, requiring NYCHA to (1) allocate or reallocate personnel; (2) allocate or reallocate resources; (3) take or refrain from specific actions; (4) hire independent contractors; (5) hire independent experts; or (6) inctease NYCHA staff for specific functions. The Monitor shall consider public health and safety, cost, and other factors deemed relevant by the Monitor in developing a remedial directive.
c. The Monitor shall submit the proposed remedial directive for review to NYCKA, HUD, and SDNY 30 days in advance of the proposed date for the Monitor to issue the remedial directive. NYCHA may submit comments to HUD and SDNY within 21 days thereafter. HUD and SDNY shall consider the Monitor’s proposal and NYCHA’s comments.
d. After considering the submissions and consultation with the Monitor, HUD may approve the Monitor’s proposal, approve NYCHA’s proposal, approve either proposal with modifications, or reject the proposals. NYCHA and the Monitor shall be provided with notice of and a reasonable opportunity to comment on any non-de minimis modifications to the proposals submitted before a modified proposal goes into effect.
e. Upon approval of a remedial directive by KUD, the Monitor may issue a remedial directive.
91. If, after the issuance of a remedial directive, the Monitor finds that NYCHA has failed to comply with the remedial directive; continues to fail in using best efforts to implement the Plan addressed by the remedial directive; or continues to fail to meet the requirements in Exhibit A or Exhibit B addressed by the remedial directive, then NYCHA agrees that the Monitor may take such actions on NYCHA’s behalf as the Monitor deems necessary to implement the remedial directive directly. The Monitor shall submit the proposed actions to be taken on NYCHA’s behalf to NYCHA and to HUD with a copy to SDNY (or in the case of Exhibit A or Action Plans related thereto, to HUD and SDNY jointly) 30 days in advance of the proposed date for the Monitor to take such action. NYCHA may
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submit comments to HUD and SDNY within 14 days thereafter. Upon concurrence in the remedial directive by HUD (after consultation with SDNY, or in the case of Exhibit A or Action Plans related thereto, by MUD and SDNY jointly), the Monitor may issue a remedial directive.

92. Paragraphs 90 and 91 shall not be used to address failures by NYCHA that are de minimi S.

93. Nothing in this Agreement should be construed to limit HUD’s or EPA’s statutory or reguLatory authority. HUD and EPA reserve all of their rights under applicable law, including, but not limited to, the right to appoint, or to seek judicial appointment of, a receiver for substantial default, as well as all other administrative remedies and authority.

94. In addition to all otherwise available remedies, if NYCHA or the City fails to comply with any part of this Agreement, HUD, EPA, or the United States on behalf of MUD and/or EPA, may pursue any remedy available to them, including to enforce this agreement by seeking injunctive relief or an order of specific performance in the U.S. District Court of the Southern District of New York. With respect to any such action to enforce this agreement:

a. The City and NYCHA agree that a non-dc minimis failure to comply with this Agreement causes an irreparable harm to the United States and warrants the issuance of injunctive relief for specific performance.

b. The City and NYCHA agree that they waive any defenses, legal or equitable, that might exist with respect to such action, except the defenses that there was no non-dc minimis failure of compliance with the Agreement and that the relief proposed is not necessary to remedy the noncompliance.

c.

The City and NYCHA agree that expedited resolution is required.

The City and NYCHA consent to expedited resolution and to an

expedited schedule for resolution of the dispute on the merits.

95. Nothing in this Agreement should be construed to limit the authority of MUD, EPA or the United States on behalf of HUD and/or EPA, to seek judicial enforcement of this Agreement.

XVII. Effect of Agreement; Waiver

96. This Agreement shall not be construed to create rights in, or grant any cause of action to, anyone not a Party to this Agreement, other than EPA or SDNY.

97. This Agreement shall not be construed to create any greater rights of NYCHA or the City against the United States (including HUD) than would otherwise exist.

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9$. NYCHA and the City waive any claims that exist as of the Execution Date against the United States (including HUD) and any of its employees and agents related to the subject matter of this Agreement.

99. NYCHA and the City waive any claims against the United States (including HUD) regarding the validity of this Agreement or any modifications thereto.

100.

NYCHA and the City agree not to contest HUD’s determination that

NYCHA is in substantial default within the meaning of Section 6(j)(3)(A) of the

U.S. Housing Act.

101.

NYCHA and the City agree not to contest HUD’s determination that the

terms of this Agreement constitute an “arrangement[] acceptable to the Secretary

and in the best interests of the public housing residents . . . for managing all, or

part, of the public housing administered by the agency or of the programs of the

agency” within the meaning of 42 U.S.C. § 1437d(j)(3)(A)(v).

102.

This Agreement shall not be construed to limit the rights of the United

States (including but not limited to HUD, EPA and SDNY) to seek relief under

the Housing Act or under other federal laws or regulations. The United States

reserves all legal and equitable remedies to address any potential imminent and

substantial endangerment to the public health or welfare or the environment

arising at, or posed by, NYCHA’s conduct, whether related to matters described

herein or otherwise.

103.

In any subsequent administrative orjudicial proceeding initiated by the

United States (including but not limited to HUD, EPA and SDNY) for injunctive

relief, civil penalties, or other appropriate relief against NYCHA, NYCHA shall

not assert, and may not maintain, any defense or claim based upon the principles

of waiver, resjudicata, collateral estoppel, issue preclusion, claim preclusion,

claim-splitting, or other defenses based upon any contention that the claims raised

by the United States in the subsequent proceeding were or should have been

brought in the Complaint or addressed in the Agreement.

104.

This Agreement is not a permit, or a modification of any permit, under any

federal, state, or local laws or regulations. This Agreement does not remove any

responsibility of NYCHA for achieving and maintaining complete compliance

with all applicable federal, state, and local laws, regulations, and pemlits, and

NYCHA’s compliance with this Agreement shall be no defense to any action

commenced pursuant to any such laws, regulations, or permits, except as set forth

herein. HUD and SDNY do not, by entering into this Agreement, warrant or aver

in any manner that NYCHA’s compliance with any aspect of this Agreement will

result in compliance with any provisions of federal, state, or local laws,

regulations, or permits.

105.

This Agreement does not limit or affect the rights of the United States

(including but not limited to HUD, EPA and SDNY) against any third parties not

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party to this Agreement (including any present or former employees, officers, or board members), nor does it limit the rights of third parties, not party to this Agreement, against NYCKA, except as otherwise provided by law.

XVIII. Litigation Claims

106.

HUD and SDNY agrees that within 14 days of appointment of the Monitor

SDNY will file appropriate papers with the U.S. District Court to obtain

dismissal, without prejudice, of the Complaint.

107.

NYCHA agrees not to object to a motion to reinstate any Count of the

Complaint in the event of breach of this Agreement by NYCHA. In such a case,

NYCHA will not assert any defense of laches or untimeliness with respect to such

Count. NYCHA hereby agrees to toll the running of any limitations period with

respect to any civil claims asserted by the United States based on the allegations

of the Com5laint.

XIX. Signatories/Service

10$.

Each undersigned representative of HUD, NYCHA, and the City certifies

that he or she is fully authorized to enter into the terms and cotiditions of this

Agreement.

109.

This Agreement may be signed in counterparts, and its validity shall not

be challenged on that basis.

XX. Integration

11 0.

This Agreement, including Exhibits A through C, shall express the entire

agreement of the parties hereto, written or oral with respect to resolving the

substantial defatilt of NYCHA.

111.

This Agreement shall not supplant nor supersede any obligations of

NYCHA under the ACC or any other agreements between NYCHA and HUD.

112.

If there is any conflict between this Agreement and a provision of any

other existing agreement, HUD shall in its sole discretion detenriine which

provisions shall prevail.

XXI. Information Collection and Retention

113.

The United States and its representatives, including attorneys, contractors,

and consultants, will have continued access to NYCHA data and personnel to the

extent necessary (in the United States’ unreviewable discretion) for oversight of

implementation of the Agreement.

114.

Until one year after the termination of this Agreement, NYCHA and the

City shall retain, and shall instruct its contractors and agents to preserve, all non-

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identical copies of all documents, records, or other information (including documents, records, or other information in electronic form) that relate in any manner to NYCKA’s and the City’s performance of its obligations under this Agreement and that meet criteria specified by the Monitor, who shall consider cost and the purposes of this Agreement in setting forth such criteria.

115.

At the conclusion of the information-retention period provided in the

preceding paragraph, NYCHA and the City shall notify HUD, EPA, and SDNY at

least 90 days prior to the destruction of any documents, records, or other

information subject to the requirements of the preceding paragraph and, upon

request by HUD or SDNY, NYCHA and the City shall deliver any such

documents, records, or other information to the United States.

116.

This Agreement in no way limits or affects any right of entry and

inspection, or any right to obtain information, held by the United States (including

HUD and EPA) pursuant to applicable federal laws, regulations, or permits, nor

does it limit or affect any duty or obligation of NYCKA and the City to maintain

documents, records, or other information imposed by applicable federal or state

laws, regulations, or permits.

117.

NYCHA and the City agree that the United States may retain and use

documents and information produced to it by NYCKA pursuant to Civil

Investigative Demand or otherwise in the course of the United States’

investigation of this matter, and in particular waives any limitation on the

retention or use of such documents and information contained in 31 U.S.C.

§ 3733.

118.

Nothing in this Agreement limits any document retention obligations that

NYCHA or the City may have under applicable law or regulation.

XXII. June 11, 2018 Consent Decree

119.

The June 11, 201 8 Consent Decree is null and void, except with respect to

the admissions contained in paragraph 7 of the Consent Decree, which NYCHA

ratifies and reaffirms.

XXIII. Construction and Severability

120.

Each party has participated in the drafting and preparation of this

Agreement and this Agreement shall be construed as a whole, according to its fair

meaning and not for or against any party.

121.

If any part of this Agreement is found to be contrary to law, that part may

be severed from the Agreement and the remainder of the Agreement shall remain

in full force and effect. The remaining Agreement shall be construed as far as is

lawful and practicable to enforce the overall intent of the original Agreement.

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FOR THE U.S. DEPARTMENT Of HOUSING AND URBAN DEVELOPMENT:

Dated: January 31, 2019 New York, New York

BENJAMI S. SON, SR., M.D. Secretary U.S. Department of Housing and Urban
Development
451 7”St., SW Washington, DC 20410

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FOR THE UNITED STATES OF AMERICA:

Dated: January 31,2019 New York, New York

GE5FF’[S. BERMAN United States Attorney Attorneyfor the United States
ROBERT WILLIAM YALEN MONICA P. FOLCH JACOB LILLYWHITE TALIA KRAEMER SHARANYA MOHAN Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel.: (212) 637-2800 Fax: (212) 637-2702 Email: robert.yalenusdoj.gov
rnonica.fo1chusdoj .gov jacob.! illywhite@usdoj.gov taIia.kraemerusdoj .gov sharanya.mohanusdoj .gov

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Case 1:18-cv-05213-WHP Document 75-1 Filed 03/14/19 Page 32 of 52

FOR THE CITY OF NEW YORK:
Dated: January 31,2019 New York, New York

W. CARTER Crporation Counsel Attorneyfor the City ofNew York
GEORGIA PESTANA First Assistant Corporation Counsel
100 Church Street New York, New York 10007 Tel.: (212)356-1000 Fax: (212)356-1148 Email: zcarterlaw.nyc.gov
gpestanaIaw.nyc.gov

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EXHIBIT A - REQUIREMENTS FOR LEAD-BASED PAINT
A. In General
Terms used with respect to lead-based paint compliance but not expressly defined herein shall have the meaning contained in 24 C.F.R. part 35, and 40 C.F.R. part 745.
2. NYCHA shall comply with 24 C.F.R. part 35, and 40 C.F.R. part 745.
3. Nothing herein limits NYCHA’s obligations under any other federal, state, or local laws or regulations governing lead-based paint or lead-based paint hazards.
B. Priority Action Units and Common Areas
4. No later than 30 days after execution of this Agreement, NYCHA shall provide the United States the following:
a. A report identifying all developments that meet the following requirements: (i) they were built prior to January 1, 1978, and (ii) they are
not exempt pursuant to 24 C.F.R. § 35.115, as a result of an inspection, an
abatement, or otherwise (the “Lead Paint Developments”). Such report will identify each unit (including each “child-occupied facility”) within
such Lead Paint Developments that is not exempt pursuant to 24 C.F.R. §
35.115 (“Lead Paint Unit”).
b. A report (the “Immediate Action List”) ideiitifying the subset of Lead Paint Units that NYCHA has reason to believe are occupied or routinely visited by a child under the age of 6. Routine visiting shall be determined in conformance with the first sentence of the definition of child-occupied
facility at 40 C.F.R. § 745.83.
5. Within 30 days of execution of this Agreement, NYCHA shall comply with the following requirements:
a. Perform at least one visual assessment in accordance with 24 C.F.R.
§ 35.1355 of each Lead Paint Unit on the Immediate Action List, except
insofar as that Lead Paint Unit received a compliant visual assessment within the preceding 12 months; and
b. Eliminate any lead-based paint hazards in Lead Paint Units identified on the Immediate Action List through the performance of interim controls in
accordance with 24 C.F.R. § 35.1330, or through abatement in accordance with 24 C.F.R. § 35.1325.
6. No later than 90 days after execution of this Agreement, NYCKA shall submit to the United States documents sufficient to show NYCHA’s basis for claiming that particular
pre-1978 developments are exempt pursuant to 24 C.F.R. § 35.115. To the extent that

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HUD and SDNY thereafter notify NYCKA that they reject that determination, such developments, units and common areas will no longer be considered by NYCHA to be
exempt pursuant to 24 C.F.R. § 35.1 15. If HUD and SDNY (a) object to the exemption
for a particular development, unit, or common area, and (b) the lack of exemption would have led to the inclusion of additional units or common areas on the Immediate Action List, NYCHA shall within 30 days thereafter comply with paragraph 5 as to such additional apartments.

7. NYCHA may conduct a new lead-based paint inspection (in accordance with 24 C.F.R. §
35.1320(a)) of any Lead Paint Unit on the Immediate Action List. If that inspection determines that no lead-based paint is present in the unit, NYCKA may remove the unit from the Immediate Action List if NYCHA provides the inspection report to the United
States and to the resident household within seven days of NYCHA’s receipt of the inspection report, and the United States does not object to the removal of the unit from the Immediate Action List within 14 days of receiving such inspection results.

C. Abatement of Lead-Based Paint

8.

Within five years of the execution of this Agreement, NYCHA shall abate all lead-based

paint at the Harlem River Houses and the Williamsburg Houses (the “Early Abatement

Developments”) in accordance with 40 C.F.R. part 745 subpart L.

9. Within ten years of the execution of this Agreement, NYCHA shall abate, in accordance with 40 C.F.R. part 745 subpart L, all lead-based paint in 50% of apartment units that contain lead-based paint, and interior common areas that contain lead-based paint in the same building as those units. Units and interior common areas in the Early Abatement Developments shall be included in calculating compliance with the requirements in this paragraph.

10. Within fifteen years of the execution of this Agreement, NYCHA shall abate, in accordance with 40 C.F.R. part 745 subpart L, all lead-based paint in 75% of apartment units that contain lead-based paint, and interior common areas that contain lead-based paint in the same building as those units. Units and interior common areas abated pursuant to paragraphs 8 and 9 shall be included in calculating compliance with the requirements in this paragraph.

11. Within twenty years of the execution of this Agreement, NYCHA shall abate, in accordance with 40 C.F.R. part 745 subpart L, all lead-based paint in 100% of apartment units that contain lead-based paint, and interior common areas that contain lead-based paint in the same building as those units.

12. NYCHA shall abate exterior common areas that contain lead-based paint. NYCHA shall develop an Action Plan setting forth an appropriate timeline for such abatement, prioritizing common areas posing a higher risk of exposure to children.

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13. For purposes of paragraphs 8,9, 10, 11 and 12, “common areas” and “abatement” shati have the meaning in 40 C.F.R. part 745, subpart L. However, with respect to abatement, the Monitor shall determine whether NYCKA will not be able to comply with the ongoing maintenance, reevaluation, and other obligations associated with using enclosure, encapsulation, encasement, or other abatement measures that retain the lead-
based paint in place (“alternative abatement methods”) (24 C.F.R. § 35.1 120(c) and
35.1355, and see the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (https://www.hud.gov/program offices/healthy homes/lbp/hudguidel ines), especially chapters 6 and 11 through 15), and if the Monitor determines that NYCHA will not be able to, then “abatement” in paragraphs 8, 9 and 11 shall mean the removal of lead-based paint in compliance with 40 C.F.R. part 745 subpart L, but shall not include alternative abatement methods, and NYCHA shall abate by removal any lead-based paint that had been abated by an alternative abatement method. After a finding by that Monitor that NYCHA will not be able to comply with its obligations associated with using alternative abatement methods, upon the Monitor subsequently finding that NYCHA will be able to comply, NYCHA may use such methods along with abatement methods that remove lead-based paint.

14. In performing any lead paint abatements, whether pursuant to paragraphs $ and 9 or otherwise, NYCHA shall comply with the following, in addition to other legal requirements:

a. NYCHA shall ensure that a certified supervisor is onsite or otherwise
available in accordance with 40 C.F.R. § 745.227(e).
b. NYCHA shall notify EPA of lead-based paint abatement activities electronically using EPA’s Central Data Exchange (CDX) in accordance
with 40 C.F.R. § 745.227(e)(4)(vii).

c. NYCHA shatl prepare and implement written occupant protection plans
for all abatement projects in accordance with 40 C.F.R. § 745.227(e)(5).

U. NYCHA shall specify methods of collection and lab analysis in
accordance with 40 C.F.R. § 745.227(0.
e. NYCHA shall ensure that a clearance examination is performed, and a clearance examination report provided by a lead-based paint inspector/risk assessor certified and licensed as applicable for the property location, in
accordance with 40 C.F.R. § 745.227(e)(8)-(9). The lead-based paint
inspector/risk assessor must be independent of the lead-based paint abatement firm, supervisor, and contractors performing the abatement work.

f.

NYCHA shall ensure that the certified supervisor on each abatement

project prepares an abatement report in accordance with 40 C.F.R.

§ 745.227(e)(10).

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g.

NYCHA shall maintain records in accordance with 40 C.F.R. § 745.227(i)

and 24 C.F.R. § 35.175.

D. Lead-Safe Work Practices

15. NYCHA shall comply with lead-safe work practice requirements set forth in the Lead
Safe Housing Rule, 24 C.F.R. part 35, subparts B-R, and the Renovation, Repair, and
Painting Rule, 40 C.F.R. part 745, subpart E, when directing or performing renovation (as
that term is defined in 40 C.F.R. § 745.83) or maintenance work in Lead Paint
Developments to which lead-safe work practices apply, including by:

a. Establishing and maintaining sufficient information in NYCHA’s renovation and maintenance computer systems to readily identify renovation and maintenance projects involving work to which the leadsafe work practices regulations apply in accordance with 24 C.F.R
§ 35.1330, 35.1350 and 40 C.F.R. § 745.85, 745.89;
b. Ensuring that only properly trained and certified firms and workers are assigned to perform work to which lead-safe work practices apply in
accordance with 24 C.F.R § 35.1330, 35.1350 and 40 C.F.R. § 745.85,
745.90;

c.

Obtaining and maintaining certification as a certified renovation firm if

any of the workers described in this paragraph are NYCHA employees,

and the work they do is covered by 40 C.F.R. part 745, subpart E (or, if

applicable in the future, the appropriate provisions of subpart Q), in

accordance with 40 C.F.R. § 745.81, 745.89;

d. Ensuring supplies necessary to perform lead-safe work practices in
accordance with 24 C.F.R § 35.1350 and 40 C.F.R. § 745.85 are readily
available to trained and certified workers;

e. Ensuring that firms and workers assigned to perform renovation or maintenance work to which lead-safe work practices apply use the RRP Renovation Checklist and establish and maintain records necessary to demonstrate compliance with the RRP Rule in accordance with 40 C.F.R.
§ 745.86;

f.

Ensuring that residents of units and developments in which renovation or

maintenance work to which lead-safe work practices apply will be

performed are informed of the work to be performed and the risks

involved in accordance with 24 C.F.R § 35.1345 and 40 C.F.R. §S 745.84
and 745.85;

g. Retaining records demonstrating compliance with the regulations set forth
at 24 C.F.R. § 35.125 and 40 C.F.R. § 745.84.

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h. Containing or causing to be contained any work area to which lead-safe work practices will apply by isolating the work area and waste generated so that no dust or debris leaves the work area in accordance with 24 C.F.R.
§ 35.1345 and 40 C.F.R. § 745.85(a);

i.

Containing, collecting, and transporting waste from the renovation in

accordance with 40 C.F.R. § 745.85(a)(4);

j.

Performing cleanup of any work area to which lead-safe work practices

apply until no dust debris or residue remains in accordance with 24 C.F.R.

§S 35.1 345, 35.1335 and 40 C.F.R. § 745.85(a) and (b), and conducting

and passing a clearance examination in accordance with 24 C.F.R. §

35.1340 (including follow-up as required by that section’s subsection (e)

after clearance failure(s)), as provided by 40 C.F.R. § 745.85(c).

E. Visual Assessments

16. Each calendar year and at unit turnover, NYCHA shall perform visual assessments in
Lead Paint Developments in accordance with 24 C.F.R. § 35.1355(a)(2).
17. Within one year of the execution of this Agreement, NYCHA shall control deteriorated
lead-based paint identified by visual assessments in compliance with 24 C.F.R. §
35.1120(b)(1) and (2); except that for a visual assessment performed in an apartment unit that has not had a previous compliant visual assessment within the preceding twelve months, all corrections of lead-based paint hazards shall be made within thirty days of the visual assessment.

F. Biennial Risk Assessment Reevaluations

1$. Within two years of the execution of this Agreement, NYCHA shall conduct risk assessment reevaluations of all NYCHA housing that contains lead-based paint in
accordance with 24 C.F.R. § 35.1355.
G. EIBLL/EBLL-Triggered Risk Assessments, Investigations and Abatement

19. Within 30 days of appointment of the Monitor, NYCHA shall provide the Monitor a list (the “EIBLL/EBLL-Triggered Risk Assessment List”) of all units, common areas
servicing such units, and developments in which neither an environmental investigation
nor a risk assessment was performed since the date of: (a) the reporting to NYCHA (if on or after July 13, 2017) of a case of a child under age 6 with an elevated blood lead level
(EBLL) (as those terms are defined in 24 C.F.R. § 35.110, as amended by $2 fed. Reg.
4151 (Jan. 13, 2017)) living in such unit and development, or (b) the reporting to
NYCHA (if before July 13, 2017) of a case of a child with an elevated blood lead level
(EIBLL) (as those terms were defined in 24 C.F.R. § 35.1 10, prior to amendment by $2
Fed. Reg. 4151 (Jan. 13, 2017)) living in such unit and development.

20. After providing the Monitor the EIBLL/EBLL-Triggered Risk Assessment List, within a timeframe acceptable to the Monitor, NYCHA shall confirm that the New York City

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Department of Health and Mental Hygiene (“NYC DOHMK”) has performed an
environmental investigation in accordance with 24 C.F.R. § 35.1 10, 1130, in any unit
and common areas servicing that unit identified in the EIBLL/EBLL-Triggered Risk Assessment List. To the extent the NYC DOKMH has not performed an environmental
investigation in accordance with 24 C.F.R. § 35.110, 1130, in any unit and common
areas servicing that unit identified in the EIBLL/EBLL-Triggered Risk Assessment List, NYCHA shall perform such environmental investigation within a timeframe acceptable to the Monitor.
21. After issuing or receiving the report of the environmental investigation, within a timeframe acceptable to the Monitor, NYCHA shall complete the abatement of identified
lead-based paint hazards in accordance with 24 C.F.R. § 35.1130(c) and 35.1325.
22. NYCHA shall perform risk assessments for all other units in the building in which a child under age 6 resides or is expected to reside on the date lead-based paint hazard reduction under Paragraph 21 is complete, and common areas servicing those units in the developments identified in the EIBLL/EBLL-Triggered Risk Assessment List, within a timeframe acceptable to the Monitor.
H. EBLL Reporting
23. NYCHA shall report to HUD each confirmed case of a child with an elevated blood lead
level within 5 business days of being so notified in accordance with 24 C.F.R. § 35.1130.
24. No later than 60 days after the execution of this Agreement, NYCHA shall enter into a written agreement with the NYC DOHMH resolving any barriers to the sharing of information relating to resident children’s blood lead levels necessary for NYCHA to
make disclosures to HUD in accordance with paragraph 23 and 24 C.F.R. § 35.1 130, and
shall provide a copy of such agreement to the United States.
25. NYCHA shall report to the Monitor and to the United States any NYC DOHMH Commissioner order to abate lead-based paint within five days of receiving such order.
26. On and after the Effective Date, to the extent NYC DOHMH has not performed an environmental investigation of any unit in which a child with an elevated blood lead level has been reported within 15 days of identifying such unit, NYCKA shall perform an environmental investigation of that unit and common areas servicing that unit and perform abatement of any lead-based paint hazards within thirty days in accordance with
24 C.F.R. § 35.1130(c) and 35.1325.
Lead Disclosure
27. from and after the Effective Date, NYCHA shall provide residents signing new leases (or, where required by regulation, renewal leases) with information about the presence of lead-based paint and lead-based paint hazards in their apartments and developments in accordance with the Lead Disclosure Rule, 24 C.F.R. part 35, subpart A; 40 C.F.R. part 745, subpart F.
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28. NYCHA shall ensure that physical copies of all materials required to be disclosed by the Lead Disclosure RuLe are present, available for inspection, and pemianently maintained at the management office for each development.
29. NYCHA shall ensure that electronic copies of all materials required to be disclosed by the Lead Disclosure Rule are available to residents through an internet-based portal.
ii. Certifications Regarding Lead Paint
30. NYCHA shall provide the United States and the Monitor certifications describing its compliance as follows:
a. No later than 120 days after execution of this Agreement, NYCHA shall submit to the United States a statement describing its compliance with paragraphs 4-6. In its submission to the United States, NYCHA shall specify the method(s) used to correct any lead based paint hazards identified on the Immediate Action List and certify that such corrections were performed in compliance with the Lead Safe Housing Rule, Renovation, Repair and Painting Rule. and Abatement Rule, as applicable, and that residents were notified of the corrections in compliance with the Lead Safe Housing Rule.
b. Six months after the Effective Date, and every six months thereafter, NYCHA shall provide the United States and the Monitor a certification describing its compliance with paragraphs 8 to 15.
31. To the extent that compliance is not yet due under a particular provision at the time that the certifications described in paragraph 30 are to be provided, the certification shall describe NYCHA’s progress achieving compliance when due, and detail NYCHA’s plan for achieving compliance promptly.
32. Upon the request of the United States or the Monitor, NYCHA shall promptly submit documents underlying a certification.
iii. Other Obligations
33. In addition to meeting the requirements of paragraphs Ito 32, and except where
otherwise provided in an approved Action Plan, NYCHA shall perform the following tasks:
a. NYCKA will display a sample kit of the supplies needed to complete an RRP work order in all 139 storerooms by January 31, 2019.
b. NYCHA will issue a minimum of one kit of RRP supplies to RRP-certified staff daily by February 28, 2019.
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c. NYCHA will enhance its work order system to automatically create a “dust wipe” work order if a RRP work order is generated by february 28, 2019.
d. NYCHA wiLl select a vendor to supplement the EPA’s RRP training with practical training on dtist control measures to simulate a range of working conditions by March 31, 2019 and train substantially all RRP-certified staff by December 3], 2019.
e. NYCHA will provide all Resident Building Superintendents, Assistant Resident Building Superintendents, and Property Managers with training in RRP practices on an ongoing basis.
f NYCHA will train all maintenance workers to perform lead-based paint visual assessments by September 30, 2019.
g. NYCHA will secure additional, dedicated painting contracts for the Healthy Homes Department to exclusively focLis on remediation by December 31, 2019.
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EXHIBIT B - REQUIREMENTS FOR HEAT, MOLD, ELEVATORS, PESTS, AND ANNUAL INSPECTIONS

A. Heat

i. Provision of Heat
1. As set forth in paragraphs 2 and 3 below, NYCHA will comply with N.Y.C. Admin.
Code § 27-2029(a) (the “legal limits”), which as of the Effective Date require NYCHA to
maintain the following temperatures in apartments between October 1 and May 31 (the “Heating Season”):

a.

between the hours of 6:00 a.m. and 10:00 p.m., a temperature of at least

6$ degrees Fahrenheit whenever the outside temperature falls below 55

degrees; and

b. between the hours of 10:00 p.m. and 6:00 a.m., a temperature of at least 62 degrees Fahrenheit.

2. By and after October 1, 2024, NYCHA will ensure that, during any given Heating Season:

a. no more than 15% of occupied apartments, as measured according to procedures established in an Action Plan which may include a reliable sampling method, shall have an occasion in which the temperatures fall below the legal limits, and

b. the temperature shall not fall below the legal limits on more than three separate occasions in a given unit.

ii. Identification of Heating Failures
3. Within 90 days of the Effective Date of this Agreement, for those developments which are already furnished with electronic temperature reading devices, NYCHA will institute and maintain a system that identifies all apartments in which such devices indicate a violation of the City Code heating requirements, and identifies the inside and outside temperatures associated with such violation.

4. This information will be available to all NYCHA personnel responsible for heating and to all development managers.

5. This information will be fully available to the Monitor, HUD, and SDNY.
6. An appropriate mechanism for disclosing this information to the public shall be provided in an Action Plan.

7. By December 31, 2020, NYCHA will have installed electronic temperature monitoring sufficient to provide NYCHA a comprehensive understanding of heating conditions in 44

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developments, which shall include electronic temperature monitoring in no fewer than 30% of NYCHA apartments in such developments. A schedule shall be established in an Action Plan with deadlines by which NYCHA will install such monitoring systems in the remainder of NYCHA’s developments.

iii. Response to Heating Failure

8. By October 1,2019, NYCHA shall establish an Action Plan that identifies, for each development, how NYCHA will respond to heating outages, taking into account resident populations, historical data about prior outages, the availability of on-site and remote maintenance personnel, and response times. The plan shall include provisions for alternative heated community spaces for heating outages that are expected to last for a substantial duration. The plan shall also address NYCKA’s policies for closing out work orders when the resident is not available at home or otherwise does hot provide access to his or her apartment to resolve a heating outage. The plan shall be made available to the residents and posted online.

9. Starting with the 1-leating Season beginning October 1, 2019, NYCHA will:

a.

Consistent with its previously stated goal, restore heat to units affected by

a heating shortage within an average of 12 hours.

b. During the Heating Season, for 85% of heating shortfalls, NYCHA will restore heat to affected units within 24 hours, and in no event more than 48 hours. NYCHA may restore heat through the use of temporary replacement heating systems that comply with the N.Y.C. Admin. Code.

c.

In any event in which heat is unable to be restored to a particular unit

within 12 hours, appropriate NYCHA personnel distinct from the NYCKA

personnel responsible for the heat restoration, as identified in an Action

Plan, shall undertake an investigation to determine the root cause(s) of

such initial failure of the heating system and the failure to achieve the

restoration of service within the timeframe, identify corrections to prevent

or lessen the recurrence of such failures, and track the implementation of

such corrective actions. Such information shall be retained in a central

repository to which all applicable maintenance staff and management have

access.

10. Starting with the Heating Season beginning October 1,2024, NYCHA will:

a. During the Heating Season, for 85% of heating shortfalls, NYCHA will restore heat to affected units within 12 hours, and in no event more than 24 hours. NYCHA niay restore heat through the use of temporary replacement heating systems that comply with the N.Y.C. Admin. Code.

b. In any event in which heat is unable to be restored to the affected units within 12 hours, the Quality Assurance Unit shall undertake an investigation to determine the root cause(s) of such initial failure of the heating system and the failure to achieve the restoration of service within

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the timeframe, identify corrections to prevent or lessen the recurrence of such failures, and track the implementation of such corrective actions. Such information shall be retained in a central repository to which atl applicable maintenance staff and management have access. 11. A failure to timely restore heat will not constitute violation of paragraphs 9 and 10 if NYCHA documents that the resident has failed to provide access to the unit; provided, however, that this paragraph only applies to the extent that NYCHA has provided the resident with the opportunity to authorize access in his or her absence. 12. A failure to timely restore heat will not constitute a violation of paragraphs 9 and 10 if the failure is caused by forces outside of NYCHA’s control other than the weather, if NYCHA establishes to the satisfaction of the Monitor that they were the cause of the failure and that such cause was outside NYCHA’s control. Nothing in this paragraph affects the provision in paragraph 11. 13. Beginning on and after the Effective Date: a. Within two hours of NYCHA learning of any unplanned heating outage, NYCHA shall notify all affected tenants by robocall. NYCHA shall also post notice of the outage within the common areas of the affected building and on NYCHA’s website. b. For any planned heating shortfall, NYCHA will provide affected tenants with at least 4$ hours’ advanced notice. Such notice will be provided via robocall, and shall be posted in the common areas of the affected building and on NYCHA’s website. c. NYCHA shall give the Monitor 4$ hours’ advanced notice of any planned heating shortfall, and shall notify the Monitor within 2 hours of receiving notice of any unplanned heating shortfall. The notice shall be provided in the manner prescribed by the Monitor. iv. Other Obligations 14. In addition to meeting the requirements of paragraphs I to 13, and except where
otherwise provided in an approved Action Plan, NYCHA shall perform the following tasks:
a. By March 31, 2019, NYCHA will create a 24/7 Heat Desk which will monitor heating metrics and dispatch staff to correct deficiencies during the Heating Season.
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b. NYCHA will modernize the Building Management Systems’ at 44 developments by December 31, 2019. Modernization will include introducing indoor temperature sensors.
c. NYCKA will replace or address approximately 500 boilers by 2026, as follows: • 297 boilers will be replaced by Deceniber 31, 2026 based on the current capital plan (70 boiler within 3 years plus another 63 within five years). NYCHA will partner with the School Construction Authority (SCA) to reduce the overall timeframe for the planned capital work. The partnership with the SCA could accelerate NYCHA’s planned capital work by a year. NYCHA could further increase the number of heating plants replaced or accelerate the pace of replacement with additional funding, regulatory relief, and statutory changes. In parallel with boiler replacement, NYCHA will evaluate the condition of a development’s entire heating-related capital needs, such as replacement of underground distribution systems, and take appropriate action.
• NYCHA will address approximately 200 additional boilers through PACT through December 31, 2026. The developer selected to partner with NYCHA will replace or repair the boiler and accessory heating systems as needed.

B. Mold2

1. Mold Incidence and Recurrence

1 5. Within five years of the Effective Date, NYCHA shall comply with the following:

a. F or 85% of verified mold complaints, there shall not be a second verified mold complaint in the same unit or the same common area room or hallway within a 12-month period.

b. No more than 15% of verified mold complaints shall be for mold covering 10 or more square feet in a unit or common area that is visible from within such unit or common area, unless NYCHA can document to the satisfaction of the Monitor that after having been advised by NYCHA to report incidences of mold, the resident did not report the incidence of mold until after the mold had reached this extent.

c.

Mold shall not appear more than three times in a year in any single unit.

Building Management Systems are computerized controls that provide automation, remote monitoring, and remote control for building mechanical systems, such as boiler plants, ventilation, and common area lighting. 2 “Mold” shall be defined as all species of microscopic fungi that grow in the form of filaments composed of many cells, and shall be limited to mold that has grown enough to be visible to the unaided eye.
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16. for purposes of NYCHA’s obligations under paragraph 15, small amounts of incidental mold growth that would be expected to occur in any household with average moisture conditions that may be remediated by the resident as part of standard housekeeping shall be excluded, such as limited mildew on shower curtains or around the caulking of a bathtub, so long as the character of this mold is properly documented and photographed by NYCHA.
ii. Remediation of Mold and Moisture
17. Within two years of the Effective Date:
a. for 95% of instances in which a resident reports a mold complaint that is subsequently verified or NYCHA identifies mold in a unit, consistent with the NYCHA Standard Procedure SP 040:14:1, Mold/Mildew Control in NYCHA Residential Buildings, Revised December 19, 201$, within five business days of the resident reporting or NYCHA identifying mold in the unit, NYCHA shall prepare and provide a written plan for addressing the root cause to the resident. NYCHA may meet this standard by mailing a copy of the written plan to the resident via U.S. or electronic mail within the five day period.
b. For 95% of instances in which a resident reports a mold complaint that is subsequently verified or NYCHA identifies mold in a unit, consistent with the NYCHA Standard Procedure SP 040:14:1, Mold/Mildew Control in NYCHA Residential BuiLdings, Revised December 19, 201 8, within five business days of the resident reporting or NYCHA identifying mold in the unit, NYCHA shall remove mold that is visible from within the unit. In the alternative, NYCHA may comply with this standard by remediating the mold and its underlying root cause (i) within 7 days, for repairs that can be performed by a Maintenance Worker or Caretaker, or (ii) within 15 days, for repairs that must be performed by skilled trade workers or other specialized staff in one or more visits.
c. for 95% of reports to NYCHA of floods, leaks from above, and other conditions that cause sustained or recurrent moisture to flow into a resident’s unit or the walls of the unit, NYCHA shall abate the condition within 24 hours of a report of the condition to NYCHA, and NYCHA shall remove any standing water that resulted from such condition within 48 hours of the report.
18. A failure to meet the timeframes in subparagraphs (a) and (b) of paragraph 17 shall not constitute a violation of those standards 1fNYCHA documents that the resident has failed to provide access to the unit; provided, however, that this paragraph only applies to the extent that NYCHA has provided the resident with the opportunity to authorize access in his or her absence.
19. NYCHA will not close any mold, flood, or “leak from above” work orders as “Resident Not Home,” including any such work orders that NYCHA has not yet verified.
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iii. Baez v. NYCHA
20. NYCHA shall comply with the terms of orders in Baez v. NYCHA, No. 13 Civ. $915, as they may be entered or revised by the Court.
C. Elevators
21. Within 120 days of the Effective Date, NYCHA shall establish an Action Plan that identifies, for each building that contains an elevator designed for resident use, how NYCHA will respond when all elevators are out of service at that building (a “no-service” condition). Such plan shall take into account the resident population of each building, any individuals with self-reported mobility impairments, historical data about prior outages or service disruptions, the availability of personnel to assist residents, the terms of any elevator support contract, and historical response and repair times. Such plans shall be made available to the residents and posted online.
22. Within 120 days of the Effective Date, NYCHA shall provide HUD and the Monitor with sufficient data to identify elevator service interruptions in the prior three years. This data shall be updated at least quarterly.
23. Within three years of the Effective Date, NYCHA shall comply with the following:
a. 70% of buildings containing more than one elevator will have no more than one instance per year where all elevators are out of service (whether planned or unplanned) at the same time, and no such building shall have more than three instances in a year.
b. 70% of elevators in all buildings shall have an unplanned outage no more than eight times per year, and no elevator shall have unplanned outages more than 15 times a year.
24. Within five years of the Effective Date, NYCHA shall comply with the following:
a. 85% of buildings containing more than one elevator will have no more than one instance per year where all elevators are out of service (whether planned or unplanned) at the same time, and no such building shall have more than three instances in a year.
b. 85% of elevators in all buildings shall have an unplanned outage no more than eight times per year, and no elevator shall have unplanned outages more than 12 times a year.
25. Notwithstanding anything else herein, NYCHA will take an elevator out of service where required for health and safety reasons.
26. An outage that NYCHA demonstrates to the satisfaction of the Monitor to be the result of an act of vandalism by a third party shall not be counted as an outage for purposes of paragraphs 23 and 24, provided that (i) the Monitor concludes that NYCHA used and continues to use best
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efforts to prevent such vatidalism in the affected building, and (ii) such outage is resolved within the response times set forth herein.
27. As of one year of the Effective Date, NYCHA shalt have no planned outages that result
ma no-service condition between the hours of 6 a.m. and 10a.m. or between 3p.m. and $ p.m.,
except for planned elevator rehabilitation or replacement or outages mandated by another governmental agency or regulatory entity.
i. Response to Disruptions in Service
28. for the first year after the Effective Date, NYCHA shall reduce the duration of service outages by 10%, and 75% of no-service conditions shall be resolved within 18 hours of the time NYCHA learns of them. The response rate shall improve each year thereafter as determined by the Monitor and BUD based on the data NYCHA provides to the Monitor and HUD and the steps NYCHA has taken in executing its action plans.
29. Within five years of the Effective Date. NYCHA shall resolve all outages within the following titiieframes:
a. For outages that result in a no-service condition:
(i) 85% shall be resolved within 4 hours of NYCHA learning of such condition, and
(ii) no no-service condition shall last more than 12 hours, unless the no-service condition is in a one-elevator building and results from either (A) an outage due to an elevator rehabilitation or replacement or (B) an otitage for which the industry-accepted repair time is longer than 1 2 hours or that requires NYCHA to order unavailable parts.
b. For outages that do not result in a no-service condition:
(iii) 85% shall be resolved within 10 hours of NYCE-IA learning of such condition, and
(iv) no outage shall last more than 1$ hours, unless the outage results from either (A) an outage due to an elevator rehabilitation or replacement or (B) an outage for which the industry-accepted repair time is longer than 1 8 hours or that reqLlires NYCHA to order unavailable parts.
ii. Outage Identification and Notice
30. Within six months of the Effective Date, NYCHA will institute and maintain a system that identifies every elevator outage and the start and end times of such ocitages identified by remote monitoring systems. work-order records, or any additional sources of outage information,
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and make that system accessible and available to all NYCHA personnel responsible for elevators and to other relevant personnel, including all development managers and the General Manager. 31. Within five years of the Effective Date, NYCHA will establish continuous remote monitoring in 70% of its elevators. 32. Within six months of the Effective Date, NYCHA will establish a system to provide residents of buildings affected by a planned outage 24-hours advanced notice, and to provide residents of buildings affected by an unplanned outage notice within two hours of NYCHA learning of the outage. Such notice shall include instructions regarding what assistance NYCHA has available for individuals with mobility impairments during the outage. Notice shall occur by robocall and via postings within the affected building and on NYCHA’s website. 33. NYCKA will provide the Monitor 24 hours advanced notice of any planned outage, and shall notify the Monitor of any unplanned outage within two hours of NYCHA learning of the outage. Notice shall occur in the method prescribed by the Monitor.
iii. Other Obligations 34. In addition to meeting the requirements of paragraphs 15 to 33, and except
where otherwise provided in an approved Action Plan, NYCHA shall perform the following
tasks:
a. NYCHA will adopt a new seven-day, extended schedule for caretakers to enable more frequent cleaning of elevator door tracks at the start of each shift.
b. NYCHA will replace or address at least 425 elevators by 2024: • 275 elevators will be replaced by December 31, 2024 through its capital plan. (10$ within three years plus another 1 67 within five years)
• NYCHA will transfer 150 additional elevators to third-party management through the PACT program by December 31, 2024. The developer selected through PACT will replace elevators as needed in buildings under its purview.
B. Pests3 i. Pest Population Reduction
35. Within six months of the Effective Date, the Monitor in consultation with NYCHA shall establish reasonable protocols by which Integrated Pest Management (“1PM”) professionals shall develop and provide reliable estimates, at least quarterly, of the pest populations in each
“Pest” means rats, mice, cockroaches, and bedbugs.
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NYC HA development. NYCHA shall promptly publish these figures, by development and pest type, on its website.
36. Within three years of the Effective Date, NYCHA shall achieve a 50% reduction of its rat population across its portfolio, a 40% reduction in its mice population across its portfolio, and a 40% reduction in its roach population across its portfolio. By that time, NYCHA shall also achieve a percentage reduction in its bedbug population across its portfolio, to be determined by the Monitor.
37. Within five years of the Effective Date, NYCHA shall achieve a further 50% reduction in each of its pest populations across its portfolio.
ii. Response to Resident Complaints
32. Within two years of the Effective Date, NYCHA shall:
a. respond to 75% of all rat complaints within two business days, and to all rat complaints within five days;
b. respond to 75% of all other pest complaints within seven days, and to all other pest complaints within ten days;
c. apply effective pest control methods (in compliance with applicable law including the federal Insecticide. fungicide, and Rodenticide Act, 7 U.S.C
§ 136 et seq.), to address any verified complaints within 7 days; and
d. provide expedited response and application of pest control methods in cases where NYCHA is aware that a resident of the unit has asthma or another condition generally recognized as being caused or exacerbated by exposure to pest infestations (for example, other respiratory illness, immune deficiency/suppression, and/or effects of certain medical treatments). In an Action Plan, NYCHA and the Monitor shall establish a procedure for informing residents of a process through which residents may notify NYCHA if anyone residing in a unit has such a health condition.
39. Within five years of the Effective Date, NYCHA shalL:
a. respond to 90% of all rat complaints within two business days, and to all rat complaints within five days;
b. respond to 90% of all other pest complaints within seven days, and to all other pest complaints within ten days.
40. If NYCHA does not respond to a pest complaint by a resident as required by paragraphs 38 and 39 but (a) provides the resident with the opportunity to authorize access in the resident’s absence and (b) documents to the satisfaction of the Monitor that the resident has failed to
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provide access to the unit, NYCKA wilt be deemed to have responded to the complaint for purposes of paragraphs 3$ and 39 at the time of the first documented attempt to access the unit.
iii. Targeted Relief for Infestations
41. Within six months of the Effective Date, NYCHA shall, for any unit that has more than one pest infestation complaint verified by NYCHA staff within twelve months (a) cause a professional using 1PM techniques to evaluate the unit and its immediately adjacent units and common areas within 30 days to identify any circumstances specific to that unit that may have contributed to such recurrence (including, but not limited to, unaddressed leaks, proximately located trash, or holes in walls), and (b) address, consistent with 1PM principles, any such circumstances within the following 30 days.
iv. Integrated Pest Management
42. for purposes of this Agreement, 1PM means, as described by EPA on its 1PM Principles website, as of the Effective Date, “an effective and environmentally sensitive approach to pest management that relies on a combination of common-sense practices. 1PM programs use current, comprehensive information on the life cycles of pests and their interaction with the environment. This information, in combination with available pest control methods, is used to manage pest damage by the most economical means, and with the least possible hazard to people, property, and the environment. ... 1PM takes advantage of all appropriate pest management options including, but not limited to, the judicious use of pesticides.”
43. Within twelve months of the Effective Date, NYCHA shall incorporate industry standard 1PM practices, including Northeastern 1PM Center (NortheastlPM.org and StopPests.org), Integrated Pest Management — A Guide for Affordable Housing, using the current edition at the time of the pest complaint (the edition as of the Effective Date was february 2014), as developed under an interagency agreement between HUD and the U.S. Department of Agriculture) for their Delivery of 1PM Training to PHAs project; and current editions of other professional 1PM resources as the Monitor may approve, into building operations in alt NYCHA properties.
44. Within twelve months of the Effective Date, NYCHA shall send staff appropriately trained on 1PM to respond to any pest complaint.
v. Daily Inspections and Trash Collection
45. Within six months of the Effective Date, NYCHA shall, no less than once every 24 hours, inspect the grounds and common areas of each building for cleaning and maintenance needs, including pests and trash, and correct such conditions. In particular, NYCHA shall ensure that trash on the grounds or common areas of each NYCHA building is collected and either removed from the premises or stored in a manner that prevents access by pests at least once every 24 hours.
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vi. Other Obligations 46. In addition to meeting the requirements of paragraphs 35 to 45, and except where otherwise provided in an approved Action Plan, NYCHA shall perform the following tasks:

a.

NYCHA will install 8,000 door sweeps on basement doors with gaps by

March 31, 2020

b.

NYCHA will install 50 rat slabs by December 31, 2020.

c.

NYCHA will dedicate 20 full-time exterminator staff to conduct ongoing

comprehensive preventative maintenance treatments in public spaces for

developments within the RMZ.

d.

NYCHA will install exterior bulk crushers or retrofit exterior compactors

with auger bulk crushers at 10 developments by December 31, 2022

F. Annual Inspections
47. NYCKA will conduct annual inspections of developments. To complete its annual inspections, NYCHA shall either: (a) inspect each occupied unit each year; or (b) inspect its units pursuant to such other program of annual inspection that is consistent with I-HiD Public Housing Management E-Newsletter, Vol. 3, Issue (January 2012).
48. By and after ninety (90) days after the Effective Date of this agreement, annual inspections shall include having the person conducting the inspection perform any minor repairs during the inspection.
49. By one hundred and twenty days (120) after the appointment of the Monitor, NYCHA will submit an Action Plan to the Monitor for complying with the requirement to conduct annual inspections and perform minor repairs during such inspections. The Action Plan shall include procedures for (i) on-site completion of minor repairs during inspections, and (ii) the scheduling of other inspection-identified maintenance deficiencies for subsequent repair.

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Case 1:18-cv-05213-WHP Document 75-1 Filed 03/14/19 Page 52 of 52

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