ENGROSSED SECOND SUBSTITUTE HOUSE BILL 1139

ByHouse Appropriations (originally sponsored by Representatives Pollet, Callan, Berg, Dolan, Ryu, Leavitt, Bronoske, Ramel, Ramos, Lekanoff, Stonier, Ortiz-Self, Frame, Goodman, Rule, Bergquist, Berry, Wylie, J. Johnson, Taylor, and Valdez)

AN ACT Relating to taking action to address lead in school drinking water; adding a new section to chapter 28A.210 RCW; adding new sections to chapter 43.70 RCW; adding a new section to chapter 43.20 RCW; and creating new sections.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

(2) The legislature finds that the department of health sampled and tested drinking water outlets in 551 elementary schools between 2017 and 2020. 82 percent of these schools had lead contamination of five or more parts per billion in one or more drinking water outlets and 49 percent of these schools had lead contamination of 15 or more parts per billion in one or more drinking water outlets.

(3) The legislature acknowledges that the department of health was appropriated $1,000,000 in the 2019-2021 fiscal biennium to continue the testing for lead contamination in school drinking water. The legislature also finds that the office of the superintendent of public instruction was appropriated funds in the 2019-2021 fiscal biennium for the healthy kids/healthy schools initiative. Part of these funds are for the purpose of distributing grants to school districts for remediation of elevated lead levels in drinking water. The legislature encourages districts to apply for these grants when lead test results reveal elevated lead levels, which are lead levels above five parts per billion.

(4) The legislature acknowledges the historically inequitable distribution of lead exposure for communities of color and of low socioeconomic status and plans to make a priority the protection of children from the dangers of lead exposure through school drinking water. The legislature, therefore, intends to require that drinking water outlets in elementary and secondary school buildings built, or with all plumbing replaced, before 2016 be tested for the presence and level of lead contamination by June 30, 2026, and every five years thereafter. The legislature also intends to require that schools notify the school community of lead test results and develop action plans for remediation if test results exceed the health-based standard of five parts per billion.

(5) The legislature recognizes that the youngest children are the most vulnerable to lead exposure and that many of these children spend significant amounts of time at child care facilities.

(6) This act is named for the director of the Washington public interest research group who developed and advocated for this legislation before dying of cancer in 2019 and may be known as the Bruce Speight protect children from being exposed to lead in school drinking water act.

NEW SECTION.  Sec. 2. A new section is added to chapter 28A.210 RCW to read as follows:

(1) This section applies to schools with buildings built, or with all plumbing replaced, before 2016.

(2) With respect to sampling and testing for lead contamination at drinking water outlets, a school shall either:

(a) Cooperate with the department so that the department can conduct sampling and testing as required under section 3 of this act; or

(b) Contract for sampling and testing that meets the requirements of section 3 of this act and submit the test results to the department according to a procedure and deadlines determined by the department.

(3)(a) Except as provided in (b) of this subsection, a school shall communicate annually with students' families and staff about lead contamination in drinking water. The school shall consult with the department or a local health agency on the contents of the communication, which must include: The health effects of lead exposure; the website address of the most recent lead test results; and information about the school's plan for remedial action to reduce lead contamination in drinking water. Schools are encouraged to provide the communication as early in the school year as possible.

(b) The annual communication described under (a) of this subsection is not required if initial testing, or once postremediation testing, does not detect an elevated lead level at any drinking water outlet.

(4) As soon as practicable after receiving a lead test result that reveals a lead concentration that exceeds 15 parts per billion at a drinking water outlet, and until a lead contamination mitigation measure, such as use of a filter, is implemented, the school must shut off the water to the outlet.

(5)(a) For a lead test result that reveals an elevated lead level, as defined in subsection (7) of this section, at one or more drinking water outlets, the school's governing body shall develop and adopt a school action plan in compliance with the requirements of this subsection.

(b) The school action plan must:

(i) Be developed in consultation with the department or a local health agency regarding the technical guidance, and with the office of the superintendent of public instruction regarding funding for remediation activities;

(ii) Describe mitigation measures implemented since the lead test result was received;

(iii) Include a schedule of remediation activities, including use of filters, that adhere to the technical guidance. The schedule may be based on the availability of state or federal funding for remediation activities; and

(iv) Include postremediation retesting to confirm that remediation activities have reduced lead concentrations at drinking water outlets to below the elevated lead level.

(c) The school action plan may include sampling and testing of the drinking water entering the school when the results of testing for lead contamination at drinking water outlets within the school indicate that the infrastructure of the public water system is a significant contributor to the elevated lead levels.

(d) The school's governing body must provide the public with notice and opportunity to comment on the school action plan before it is adopted.

(e) If testing reveals that a significant contributor to lead contamination in school drinking water is the infrastructure operated by a public water system that is not a school water system, the school's governing body: (i) Is not financially responsible for remediating elevated lead levels in drinking water that passes through that infrastructure; (ii) must communicate with the public water system regarding its significant contribution to lead contamination in school drinking water and request from the public water system a plan for reducing the lead contamination; and (iii) may defer its remediation activities under (b) of this subsection until after the elevated lead level in the public water system's infrastructure is remediated and postremediation retesting does not detect an elevated lead level in the drinking water that passes through that infrastructure.

(f) The school action plan adoption deadlines are as follows:

(i) For lead test results received between July 1, 2014, and the effective date of this section, for which a school did not take remedial action or for which postremediation retesting has not confirmed that the elevated lead level has been reduced to five or fewer parts per billion, the school's governing body shall provide notice of elevated lead levels in the communication required under subsection (3) of this section and adopt an action plan by January 2, 2022; and

(ii) For lead test results received after the effective date of this section, the school's governing body shall adopt an action plan within six months of receipt.

(6) A school's governing body must post on a public website the most recent results of testing for lead contamination at drinking water outlets, no later than the time that the proposed school action plan is made publicly available, under (c) of this subsection.

(7) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) "Department" means the department of health.

(b) "Drinking water" means any water that students have access to where it is reasonably foreseeable that the water may be used for drinking, cooking, or food preparation.

(c) "Drinking water outlet" or "outlet" means any end point for delivery of drinking water, for example a tap, faucet, or fountain.

(d) "Elevated lead level" means a lead concentration in drinking water that exceeds five parts per billion, unless a lower concentration is specified by the state board of health in rule in accordance with section 6 of this act.

(e) "Public water system" has the same meaning as in RCW 70A.120.020.

(f) "School" means a school district and the common schools, as defined in RCW 28A.150.020, within the district; a charter school established under chapter 28A.710 RCW; or the state school for the blind or the state school for the deaf established under RCW 72.40.010.

(g) "Technical guidance" means the technical guidance for reducing lead in drinking water at schools issued by the United States environmental protection agency until the department complies with section 5 of this act when the term means the technical guidance developed by the department.

NEW SECTION.  Sec. 3. A new section is added to chapter 43.70 RCW to read as follows:

(1) The department shall conduct sampling and testing for lead contamination at drinking water outlets in school buildings built, or with all plumbing replaced, before 2016 as specified in this section. The department meets the requirements of this section when a school contracts for sampling and testing that meets the requirements of this section and submits the test results to the department according to a procedure and deadlines determined by the department.

(2) Sampling and testing for the presence and level of lead in drinking water must meet the technical requirements described in the technical guidance.

(3)(a) Initial testing for lead contamination in drinking water must be conducted between July 1, 2014, and June 30, 2026.

(b) Retesting for lead contamination in drinking water must be conducted no less than every five years beginning July 1, 2026.

(4)(a) The department shall develop and publish a two-year plan for sampling and testing. The plan must be updated at least annually. Prior to adding a school to the plan, the department must contact the school to determine whether the school has contracted, or is planning to contract, for sampling and testing.

(b) Beginning July 1, 2026, in developing the two-year plan for sampling and testing, the department must group school buildings by governing body and then prioritize the groups based on the combined length of time since each school building built, or with all plumbing replaced, before 2016 was sampled and tested.

(5) The department shall enter a data-sharing agreement with the office of the superintendent of public instruction for the purpose of compiling a list of school buildings built, or with all plumbing replaced, before 2016.

(6) The definitions in section 2 of this act apply throughout this section unless the context clearly requires otherwise.

NEW SECTION.  Sec. 4. A new section is added to chapter 43.70 RCW to read as follows:

The department shall allow state-tribal compact schools established under chapter 28A.715 RCW to opt into sampling and testing for lead contamination at drinking water outlets in school buildings built, or with all plumbing replaced, before 2016 pursuant to section 3 of this act.

NEW SECTION.  Sec. 5. A new section is added to chapter 43.70 RCW to read as follows:

The department shall develop and make available technical guidance for reducing lead contamination in drinking water at schools that is at least as protective of student health as any technical guidance on this topic issued by the United States environmental protection agency. The technical guidance must include the technical requirements for sampling, processing, and analysis, including that analysis must be conducted by a laboratory accredited by the department of ecology. The technical guidance must describe best practices for remediating elevated lead levels at drinking water outlets in schools. Best practices must include installing and maintaining filters certified by a body accredited by the American national standards institute. Provisions of the technical guidance related to testing for the presence and level of lead in drinking water, as opposed to testing to identify sources of lead for remediation, must be designed to maximize detection of lead in water, and therefore must prohibit sampling or analytical methods that tend to mask lead contamination, including prestagnation flushing and removal of aerators prior to sampling.

NEW SECTION.  Sec. 6. A new section is added to chapter 43.20 RCW to read as follows:

After July 1, 2030, the state board may, by rule, define "elevated lead level" at a concentration of five or fewer parts per billion if scientific evidence supports a lower concentration as having the potential for further reducing the health effects of lead contamination in drinking water.

NEW SECTION.  Sec. 7. A new section is added to chapter 43.70 RCW to read as follows:

(1) To the fullest extent permitted by federal law, the department, rather than community water systems, is designated as the lead or principal agency in regard to lead in drinking water sampling, testing, notification, remediation, public education, and other actions at public and private elementary and secondary schools as required by the federal lead and copper rule, 40 C.F.R. Part 141.

(2) The department must issue a written waiver that exempts community water systems that serve schools from the sampling and testing requirements of 40 C.F.R. Part 141.92 related to schools if the department determines that the mandatory requirements for sampling and testing for, and remediation of, lead contamination in drinking water outlets at elementary and secondary schools under this act are consistent with the requirements in 40 C.F.R. Part 141.92 of the federal lead and copper rule.

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