September 14, 2016 Lead Testing
KEEPING YOU INFORMED…
Governor Cuomo recently signed into law a bill requiring all school districts and BOCES to conduct periodic testing of potable water sources and systems to monitor potential lead contamination in occupied school buildings, and to develop and implement a lead remediation plan where necessary. In addition, the Department of Health issued emergency regulations implementing the new legislation.
The Regulations provide that the initial first-draw samples collected must be 250ml taken from a cold water outlet where the water has been motionless in the pipes for at least eight, but no more than 18, hours. For all school buildings serving children in pre-kindergarten through grade five, school districts and BOCES must collect and test samples by September 30, 2016. For school buildings serving children in grades six through 12 that are not also serving children in younger grades, the samples must be collected and tested by October 31, 2016.
Those school districts and BOCES that have conducted testing and remediation since January 1, 2015 may apply to the local health department for a waiver of the new testing requirements. The waiver would apply to a specific school building(s) where: (1) the previous testing substantially complied with the new requirements; (2) the school district or BOCES performed any needed remediation, including retesting; and (3) the lead level in the building(s)’s potable water is currently below the action level.
Testing must be repeated in 2020 (unless the Commissioner determines an earlier time is warranted) and at least every five years thereafter.
If the lead concentration at any potable water outlet exceeds 15 parts per billion, the school district or BOCES is required to: (1) discontinue use of that outlet; (2) implement a lead remediation plan to mitigate the lead level; and (3) provide building occupants with an adequate alternate supply of water for cooking and drinking.
The school district or BOCES is required to retain all records of test results, lead remediation plans, determinations that a building is lead-free, and waiver requests for 10 years following the creation of the document.
School districts and BOCES are required to report to the Department of Health (via a Statewide electronic reporting system) within one business day of receiving the report of the results. Within 10 business days after receiving the report, the test results must be provided in writing to all staff and parents, the Department of Health, local health department and the State Education Department. School districts and BOCES must also post the results of all lead testing and any remediation plans on their websites as soon as practicable, but no more than six weeks after receiving the report. School districts and BOCES that performed testing and remediation at buildings after January 1, 2015 are also required to post those results and any remediation plans on its website as soon as practicable.
By no later than November 11, 2016, school districts and BOCES are also required to report to the New York State Department of Health, local health department and State Education Department that all required first-draw sampling has been completed. School districts and BOCES that tested after January 1, 2015 must submit an attestation that: the testing substantially complied with the Regulations’ testing requirements; the school district or BOCES performed any needed remediation, including retesting; the lead level in the potable water of the applicable building(s) is currently below the action level; a request for a waiver of the new testing requirements has been submitted to the local health department; and, a list of all buildings that have been determined to be lead-free.
The Education Law was also amended to permit school districts and BOCES to receive Building Aid for lead testing and associated installation of filters and other effective remedial measures, provided that the initial contamination finding is confirmed by a second sample and the remediation measures have been approved by a professional with expertise in water quality and remediation. School districts and BOCES may also be eligible to receive Building Aid for the lead testing costs as part of the Building Condition Survey conducted every five years. In addition, school districts may be entitled to receive BOCES Aid reimbursement for their share of lead testing costs for BOCES facilities.
If you have any questions about this new lead testing legislation and related Regulations, please contact Mara Harvey or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2016