After extraordinarily high levels of lead were found in water samples from Flint, Michigan in 2015, the city became the focus of national inquiry and spurred renewed attention on water quality. In September 2016, New York Gov. Andrew Cuomo signed into law a bill (A.10740/S.8158) designed to remediate lead contamination in public school settings.
The law technically took effect on Dec. 5, 2016, but the Department of Health was authorized to promulgate regulations prior to the effective date. Many school districts began testing and remediation immediately. After all, student health was at stake.
The law and regulations mandate that all public school districts and BOCES test all potable water outlets on school property for lead contamination, remediate any discovered contamination, and notify the public and parents of schoolchildren of the results of testing. Potable water outlets include any taps that could be used for drinking or cooking; this includes everything from a water fountain outside of a gymnasium to sinks in a school building to a faucet near an athletic field.
The law aims to remedy issues with fixtures and pipes, or “outlets,” rather than the origin of the water itself.
In the event that the presence of lead is found to exceed 15 parts per billion at any tap, the school must discontinue use of that outlet for drinking or cooking until a lead remediation plan is implemented to mitigate the lead level and test results indicate that the lead levels are at or below 15 parts per billion. The school must ensure that building occupants have an adequate alternate supply of potable water for drinking and cooking until the remediation plan is implemented.
Testing must be performed again in 2020, and every five years thereafter.
If lead contamination is discovered through sampling of the water in your buildings, the school district must take action in five areas:
In the event that a potable water outlet is found to be contaminated, it must be clearly labeled so as to convey that it may not be used: this includes the use of images or pictures to notify those who cannot read. A contaminated outlet may not be used for drinking or cooking again until test results show that lead levels are at or below the action level specified in the law. A contaminated outlet could, however, be used for hand washing or cleaning, but the outlet must continuously be labeled as prohibited for cooking or drinking, and should be closely monitored to ensure that it is not used for such purposes.
Although action to close the outlet is required immediately, the law does not provide a deadline for the completion of remediation.
2. Public notification.
Your district website should have up-to-date information on results of lead testing. School officials were required to list on their websites any buildings that have been deemed lead-free pursuant to Section 1417 of the Federal Safe Drinking Water Act by Oct. 31, 2016. Officials were also required to post results of all lead testing performed and lead remediation plans implemented as soon as practicable but no more than six weeks after the lab reports have been received. In the event that a school building tested its water supply, received these results, and implemented lead remediation plans consistent with the law prior to Sept. 6, 2016, public notification was required before Oct. 18, 2016.
In addition to notifying the public, the law has requirements for reporting test results to government entities. A school must report test results to the local health department no more than one business day after receipt of results. Staff and parents and guardians must then be notified in writing within 10 business days after receipt of results, although districts typically have sought to share results as promptly as possible. There is no requirement to verify the receipt of notification.
There are also requirements to report data to the state departments of health and education. District staff must enter data in a web-based data system that is used by all hospitals in the state. This system is called the Health Electronic Response Data System (HERDS).
Within 10 business days of receiving results, all schools must fill out two surveys. The first is the School Drinking Water Lead Free Building Survey. The second survey, the School Drinking Water Sampling and Results Survey, has two separate forms that must be completed.
As with many school operations, proper records must be maintained. Schools must retain records of test results for 10 years. Records must also be kept regarding lead remediation plans, determinations that a building is lead-free, and waiver requests. Copies must be provided upon request to the local health department, the state Department of Health, or the State Education Department.
The issue of lead in drinking water is of great interest to parents and the general public. In addition to fulfilling all legal requirements, school districts should endeavor to act with transparency and be clear in all communications.
5. State aid.
Districts that need to address lead contamination may have an opportunity to simultaneously address other issues with assistance from the state, including a category of building aid that can be authorized by the commissioner of education pursuant to a new Subdivision 6-h of N.Y. Education Law, Section 3602. Aid is available both for testing and remediation costs.
Costs of testing BOCES facilities may be covered by BOCES aid; Section 1950 of the Education Law was amended to allow such funding. Specifics about funding were published in guidance by the State Education Department in October 2016, available at goo.gl/VEwSiH.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Catherine E. Muskin and Henry Sobota of Ferrara Fiorenza P.C.