Subpart 67-4 Lead Testing in School Drinking Water

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 206(1)(n), 1370-a and 1110; article 13, title X

Section 67-4.1 - Purpose

Section 67-4.1 Purpose.  

This Subpart requires all school districts and boards of cooperative educational services, including those already classified as a public water system under 10 NYCRR Subpart 5-1, to test potable water for lead contamination and to develop and implement a lead remediation plan, where applicable. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.2 - Definitions

Section 67-4.2 Definitions.  

As used in this Subpart, the following terms shall have the stated meanings:  

(a) Action level means 15 micrograms per liter (µg/L) or parts per billion (ppb). Exceedance of the action level requires a response, as set forth in this Subpart. 

(b) Building means any structure, facility, addition, or wing of a school that may be occupied by children or students. The terms shall not include any structure, facility, addition, or wing of a school that is lead-free, as defined in section 1417 of the Federal Safe Drinking Water Act.  

(c) Commissioner means the State Commissioner of Health. 

(d) Department means the New York State Department of Health. 

(e) Outlet means a potable water fixture currently or potentially used for drinking or cooking purposes, including but not limited to a bubbler, drinking fountain, or faucets.  

(f) Potable water means water that meets the requirements of 10 NYCRR Subpart 5-1. 

(g) School means any school district or board of cooperative educational services (BOCES). 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.3 - Monitoring

Section 67-4.3 Monitoring.  

(a) All schools shall test potable water for lead contamination as required in this Subpart. 

(b) First-draw samples shall be collected from all outlets, as defined in this Subpart. A first-draw sample volume shall be 250 milliliters (mL), collected from a cold water outlet before any water is used. The water shall be motionless in the pipes for a minimum of 8 hours, but not more than 18 hours, before sample collection. First-draw samples shall be collected pursuant to such other specifications as the Department may determine appropriate. 

(c) Initial first-draw samples.  

(1) For existing buildings in service as of September 6, 2016, schools shall complete collection of initial first-draw samples according to the following schedule: 

(i) for any school serving children or students in any of the levels prekindergarten through grade five, collection of samples is to be completed by September 30, 2016;  

(ii) for any school serving children or students in any of the levels grades six through twelve that are not also serving children or students in any of the levels prekindergarten through grade five, and all other applicable buildings, collection of samples is to be completed by October 31, 2016. 

(2) For buildings put into service after September 6, 2016, initial first-draw samples shall be performed prior to occupancy; provided that if the building is put into service between the effective date of this regulation but before October 31, 2016, the school shall have 30 days to perform first-draw sampling. 

(3) Any first-draw sampling conducted consistent with this Subpart that occurred after January 1, 2015 shall satisfy the initial first-draw sampling requirement.  

(d) Continued monitoring. Schools shall collect first-draw samples in accordance with subdivision (b) of this section again in 2020 or at an earlier time as determined by the commissioner. Schools shall continue to collect first-draw samples at least every 5 years thereafter or at an earlier time as determined by the commissioner.  All such sampling shall be conducted according to procedures as determined by the commissioner.  

(e) All first-draw samples shall be analyzed by a laboratory approved to perform such analyses by the Department’s Environmental Laboratory Approval Program (ELAP). 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.4 - Response

Section 67-4.4 Response.  

If the lead concentration of water at an outlet exceeds the action level, the school shall: 

(a) prohibit use of the outlet until:  

(1) a lead remediation plan is implemented to mitigate the lead level of such outlet; and  

(2) test results indicate that the lead levels are at or below the action level; 

(b) provide building occupants with an adequate supply of potable water for drinking and cooking until remediation is performed;  

(c) report the test results to the local health department as soon as practicable, but no more than 1 business day after the school received the laboratory report; and 

(d) notify all staff and all persons in parental relation to children or students of the test results, in writing, as soon as practicable but no more than 10 business days after the school received the laboratory report; and, for results of tests performed prior to September 6, 2016, within 10 business days after September 6, 2016, unless such written notification has already occurred. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.5 - Public Notification

Section 67-4.5 Public Notification. 

(a) List of lead-free buildings. By October 31, 2016, the school shall make available on its website a list of all buildings that are determined to be lead-free, as defined in section 1417 of the Federal Safe Drinking Water Act. 

(b) Public notification of testing results and remediation plans. 

(1) The school shall make available, on the school’s website, the results of all lead testing performed and lead remediation plans implemented pursuant to this Subpart, as soon as practicable, but no more than 6 weeks after the school received the laboratory reports.  

(2) For schools that received lead testing results and implemented lead remediation plans in a manner consistent with this Subpart, but prior to September 6, 2016, the school shall make available such information, on the school’s website, as soon as practicable, but no more than 6 weeks after September 6, 2016. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.6 - Reporting

Section 67-4.6 Reporting.  

(a) As soon as practicable but no later than November 11, 2016, the school shall report to the Department, local health department, and State Education Department, through the Department’s designated statewide electronic reporting system: 

(1) completion of all required first-draw sampling;  

(2) for any outlets that were tested prior to September 6, 2016, and for which the school wishes to assert that such testing was in substantial compliance with this Subpart, an attestation that: 

(i) the school conducted testing that substantially complied with the testing requirements of this Subpart, consistent with guidance issued by the Department;  

(ii) any needed remediation, including re-testing, has been performed;  

(iii) the lead level in the potable water of the applicable building(s) is currently below the action level; and  

(iv) the school has submitted a waiver request to the local health department, in accordance with Section 67-4.8 of this Subpart; and 

(3) a list of all buildings that are determined to be lead-free, as defined in section 1417 of the Federal Safe Drinking Water Act. 

(b) As soon as practicable, but no more than 10 business days after the school received the laboratory reports, the school shall report data relating to test results to the Department, local health department, and State Education Department, through the Department’s designated statewide electronic reporting system. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.7 - Recordkeeping

Section 67-4.7 Recordkeeping.  

The school shall retain all records of test results, lead remediation plans, determinations that a building is lead-free, and waiver requests, for ten years following the creation of such documentation. Copies of such documentation shall be immediately provided to the Department, local health department, or State Education Department, upon request. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.8 - Waivers

Section 67-4.8 Waivers. 

(a) A school may apply to the local health department for a waiver from the testing requirements of this Subpart, for a specific school, building, or buildings, by demonstrating in a manner and pursuant to standards determined by the Department, that:  

(1) prior to the publication date of these regulations, the school conducted testing that substantially complied with the testing requirements of this Subpart;  

(2) any needed remediation, including re-testing, has been performed; and 

(3) the lead level in the potable water of the applicable building outlets are currently below the action level. 

(b) Local health departments shall review applications for waivers for compliance with the standards determined by the Department. If the local health department recommends approval of the waiver, the local health department shall send its recommendation to the Department, and the Department shall determine whether the waiver shall be issued. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110

Section 67-4.9 - Enforcement

Section 67-4.9 Enforcement. 

(a) Upon reasonable notice to the school, an officer or employee of the Department or local health department may enter any building for the purposes of determining compliance with this Subpart.  

(b) Where a school does not comply with the requirements of this Subpart, the Department or local health department may take any action authorized by law, including but not limited to assessment of civil penalties as provided by law. 

Effective Date: 
Wednesday, May 9, 2018
Statutory Authority: 
Public Health Law, Sections 1370-a and 1110