WSR 17-05-071
[Filed February 13, 2017, 2:27 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-24-086.
Title of Rule and Other Identifying Information: New WAC 170-300-0005 Definitions, 170-300-0148 Gardens in outdoor learning program space, 170-300-0235 Safe water sources, 170-300-0400 Application materials, 170-300-0410 License and program location and 170-300-0465 Retaining facility and program records; amending WAC 170-296A-7575 Drinking water; and repealing WAC 170-295-5070 How do I make sure my water is safe? and 170-296A-1360 Lead and arsenic hazardsTacoma smelter plume.
Hearing Location(s): Department of Early Learning (DEL), State Office, 110 Jefferson Street S.E., Room 130, Olympia, WA, on March 23, 2017, at 10:00 a.m.
Date of Intended Adoption: March 24, 2017.
Submit Written Comments to: Rules Coordinator, DEL, P.O. Box 40970, Olympia, WA 98504-0970, email, fax (360) 725-4925, by March 23, 2017.
Assistance for Persons with Disabilities: Contact DEL rules coordinator by March 20, 2017, (360) 725-4670.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Proposed rules update environmental safety requirements to reduce children's exposure to environmental hazards while in the care of an early learning provider. The proposals require testing faucets used for drinking water as well as preparing food and infant formula for unsafe levels of lead and copper, testing well water for unsafe levels of bacteria and nitrates, and remediation when unsafe levels are detected. The proposals also establish standards for outdoor gardens to reduce children's exposure to environmental hazards. The proposal creates an aligned standard to replace separate safe water-related rules that currently exist for family home and center child care providers.
Reasons Supporting Proposal: The proposal complies with Governor Inslee's Directive 16-06 and the department of health's (DOH) recommended requirements intended to reduce exposure to lead and other environmental hazards where children live, learn, and play. The proposal also complies with RCW 43.215.201, which directs DEL to develop rules that implement a single set of licensing standards for all child care. DEL believes that these environmental hazard-related rules are critical to the safety of children and need to be enacted before the rule making to align standards is expected to be completed.
Statutory Authority for Adoption: RCW 43.215.020, 43.215.060, 43.215.070, and 43.215.201.
Statute Being Implemented: RCW 43.215.201 and 43.215.205.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DEL, governmental.
Name of Agency Personnel Responsible for Drafting: Tyler Farmer, 110 Jefferson Street S.E., Olympia, WA, (360) 628-2151; Implementation and Enforcement: DEL licensing offices, statewide.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
1. Describe the proposed rule, including a brief history of the issue; an explanation of why the proposed rule is needed; and a brief description of the probable compliance requirements and the kinds of professional services that a small business is likely to need in order to comply with the proposed rule.
Lead and copper pose serious health risks, particularly to young children. According to the United States Environmental Protection Agency (EPA), lead can affect almost every organ and system in the human body and "children six years old and younger are most susceptible to the effects of lead." Lead and copper enter drinking water mainly through plumbing materials, and exposure may cause health problems that range from stomach complications to brain damage. Lead affects the central and peripheral nervous systems, cardiovascular system, kidney, blood, gastrointestinal system, immune system, and reproductive system. Even low levels of lead can result in behavior and learning problems, lower IQ, hyperactivity, slowed growth, hearing problems, and anemia.
In response to Governor Inslee's Directive 16-06, DOH issued recommendations for DEL and other agencies that are intended to reduce exposure to lead and other environmental hazards where children live, learn, and play. While the governor's directive requires testing in buildings built before 1978, DEL and DOH have determined that water quality testing for lead and copper in all licensed buildings is needed to achieve health and safety goals and protect young children who are the most vulnerable demographic. The proposed rule was developed using science-based, cost-effective recommendations for reducing lead consumption in young children.
Proposed WAC 170-300-0235 would require both center and family home child care providers to:
1. Determine the lead and copper levels of any water source used for food or infant formula preparation or drinking water and remediate when unsafe levels are detected. Providers must conduct an initial test within six months of the rule's effective date and test at least once every six years thereafter. Water testing would also be required as part of the application process for prospective providers; and
2. Test private well water for coliform bacteria and nitrates and remediate when unsafe levels are detected.
The proposed rule reduces the risk of children enrolled in licensed child care from being exposed to dangerous substances by requiring testing and dictating steps that will protect enrolled children in the event testing reveals unsafe levels of lead or copper at or above the standards set by EPA or unsafe bacteria and nitrate levels.
Both of the tests required under proposed WAC 170-300-0235 must be performed by a Washington state certified water laboratory, certified by the Washington state department of ecology. These labs are located around the state. The lab provides a test kit that includes sampling instructions and water bottles. Licensed providers and license applicants draw water samples and deliver them to the lab for testing. The lab issues written test results, which must be kept on the licensed premises.
2. Identify which businesses are required to comply with the proposed rule using the North American Industry Classification System (NAICS) codes and what the minor-cost thresholds are:
NAICS code (4, 5 or 6 digit)
NAICS business description
# of businesses in WA
Minor-cost threshold =
1% of average annual payroll
Minor-cost threshold =
0.3% of average annual receipts
Child day care services
*This data was formulated using the SBEIS calculator provided by the Washington State Auditor, which uses data from the 2012 United States Census. As of December 2016, three thousand six hundred four family homes and one thousand five hundred seventy-eight centers were licensed in Washington state, for a total of five thousand one hundred eighty-two child care providers.
3. Analyze the probable cost of compliance: Identify the probable costs to comply with the proposed rule, including: Cost of equipment, supplies, labor, professional services and increased administrative costs. Based on input, describe how compliance with the rule may cause lost sales or revenue.
Water testing costs vary across Washington state. Nine labs were contacted around the state to determine a range of $25 to $112 with an average cost of $47 to test for lead and copper. Testing private well water for bacteria ranged from $45 to $71, with an average cost of $56.
Testing is not expected to exceed the minor-cost threshold for any provider. For the majority of licensed center and family home providers, the only ongoing costs would be those associated with buying kits to test faucents [faucets] and private wells, where applicable, between one and six years. The majority of family homes will be testing one faucet for lead and copper. The six hundred largest centers in the state will bear an average cost of $188 to test an assumed two faucets and two drinking fountains. This cost does not take into account follow-up testing to identify potential "false-positive" readings.
Remediation costs are indeterminate should any test reveal unsafe levels of lead or copper in drinking water or bacteria or nitrates in drinking water. Remediation costs may include repairing plumbing systems or private wells, or providing bottled or packaged water to meet the safety needs for preparing food or infant formula, drinking, and cooking. These would be one-time or short-term costs. Remediation is not a new requirement - current rules require centers and family home child care providers to maintain safe water sources.
4. Explain how you determined the rule may impose more-than-minor costs on businesses in the industry:
The testing requirement does not impose more-than-minor costs on businesses in the industry. This statement is supplied since any remediation costs would likely exceed the minor threshold. However, as explained above, those costs are variable and indeterminate. Furthermore, current rules require remediation of unsafe water sources, so this should not be considered a new cost.
5. Determine whether the proposed rule may impose a disproportionate impact on small businesses compared to the ten percent of businesses that are the largest businesses required to comply with the proposed rule:
Use one or more of the following as a basis for comparing costs:
• Cost per employee,
• Cost per hour of labor, and
• Cost per $100 of sales.
The proposed rule impacts only small businesses, however the new costs imposed do not exceed the minor-cost threshold.
6. If the proposed rule is likely to impose a disproportionate impact on small businesses, identify the steps taken to reduce the costs of the rule on small businesses. Include consideration of each of the following cost mitigation strategies:
(a) Reducing, modifying, or eliminating substantive regulatory requirements;
(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements;
(c) Reducing the frequency of inspections;
(d) Delaying compliance timetables;
(e) Reducing or modifying fine schedules for noncompliance; and
(f) Any other mitigation techniques suggested by small businesses or their advocates.
If the costs cannot be reduced, provide a clear explanation of why.
The proposed lead and copper test complies with current EPA testing standards to determine whether any faucet supplying water has an unsafe concentration of lead or copper, or whether a private well has unsafe levels of bacteria or nitrates. DEL believes imposing this minor cost is necessary to ensure the safety of children who participate in the programs DEL regulates. The one-time and short-term costs identified above necessary to remediate any unsafe water source to reduce the risk of children's exposure to harmful toxins could not be mitigated.
7. Describe how small businesses were involved in the development of the proposed rule:
A working draft of the rule was distributed to licensees on January 12, 2017, with a solicitation for comment. Since January 10, the working draft has also been available on DEL's web site with an opportunity to comment. Thirteen comments were received and revisions were made based on those comments. Family home licensees are represented by the Service Employees International Union (SEIU), Local 925. DEL has a statutory obligation to negotiate proposed rules that impact family home licensees with SEIU and other affected parties. SEIU has the additional option to bargain on behalf of its members any rule impacts.
8. Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule:
The requirement of testing faucets and, where applicable, private wells would most likely not impact a licensee's hiring decision. The need to repair or replace plumbing may impact a licensee's decision to employ paid staff, or the number of hours that the licensee uses paid staff in a given year. As explained above, remediation is required by current rules.
9. Summarize the results of the analysis, including the determination if costs are disproportionate:
Proposed WAC 170-300-0235 requires center and family home child care providers to regularly test faucets for unsafe levels of lead and copper and test private well water for unsafe levels of bacteria and nitrates. The cost of testing is not expected to exceed the minor-cost threshold. Repairs are required or an alternative source of water must be provided when the tests reveal that the water is unsafe for children. Current rules require remediation of unsafe water sources, so the cost to repair water systems should not be considered a new cost imposed by the proposed rule.
A copy of the statement may be obtained by contacting Rules Coordinator, P.O. Box 49070, 110 Jefferson Street S.E., Olympia, WA 98504-9070, phone (360) 725-4670, fax (360) 725-4925, email
A cost-benefit analysis is not required under RCW 34.05.328. DEL is not among the agencies listed as required to comply with RCW 34.05.328 (5)[(a)](i). Further, DEL does not voluntarily make that section applicable to the adoption of this rule.
February 13, 2017
Ross Hunter
The following section of the Washington Administrative Code is repealed:
WAC 170-295-5070
How do I make sure my water is safe?
AMENDATORY SECTION (Amending WSR 11-23-068, filed 11/14/11, effective 3/31/12)
WAC 170-296A-7575 Drinking water.
The licensee must supply safe drinking water for the children in care. Drinking water must be served in a safe and sanitary manner and be available throughout the day. See WAC ((170-296A-1400)) 170-300-0235 for water testing requirements for a family home child care that receives its drinking water from a private well and water system.
The following sections of the Washington Administrative Code are repealed:
WAC 170-296A-1360
Lead and arsenic hazards—Tacoma smelter plume.
Chapter  170-300  WAC
WAC 170-300-0005 Definitions.
The following definitions apply to this chapter:
"Active supervision" or "actively supervise" means focused attention and intentional observation of children at all times. An early learning provider must position themselves to observe all children: Watching, counting, and listening at all times. They also use their knowledge of each child's development and abilities to anticipate what a child may do, and get involved or redirect children if necessary. Infants, toddlers, and preschoolers must be supervised at all times including daily routines such as sleeping, eating, changing diapers, or using the bathroom.
"Child" means an individual who is younger than age thirteen, including any infant, toddler, preschool-age child, or school-age child as defined in this chapter.
"Department" or "DEL" refers to the Washington state department of early learning.
"DOH" refers to the Washington state department of health.
"Early learning program" refers to regularly scheduled care for a group of children birth through twelve years of age for periods of less than twenty-four hours, licensed by the department.
"Early learning program space" means the indoor and outdoor space on the premises approved by the department for the purpose of providing licensed child care.
"Early learning program staff" refers to all persons who work or volunteer in an early learning program during hours when children are or may be present, excluding licensees.
"Early learning provider" refers to an early learning licensee or designee who works in an early learning program during hours when children are or may be present. Designees include center directors, assistant director, program supervisors, lead teachers, assistants, instructional aides, aides, and volunteers.
"Health care provider" means a person who is licensed, certified, registered, or otherwise authorized by the law of Washington state to provide health care in the ordinary course of business or practice of a profession.
"Infant" is a child birth through eleven months of age.
"Plan review" is the process by which a potential applicant meets with the designated department representative to examine or review detailed architectural floor plans, improvements and the premises to a given lot or building site. Architectural plans provide graphic representations of the following, but not limited to, the location of proposed classrooms, bathrooms, kitchen facility, outdoor play area, exit travel pathways, building foot print, water and sanitary lines. These graphic representations are used to determine if the site meets WAC licensing requirements.
"Toddler" means a child twelve months through twenty-nine months of age.
WAC 170-300-0148 Gardens in outdoor learning program space.
(1) A garden in an early learning program space must:
(a) Have safeguards in place to minimize risk of cross-contamination by animals;
(b) Use soil free from agricultural or industrial contaminants such as lead or arsenic if gardening directly in the ground;
(c) Use new, bagged gardening soil, organic soil, or potting soil obtained from a gardening supply store or other retail store if gardening in raised beds; and
(d) Use water that comes from a private well approved by the local health jurisdiction or from a public water system.
(2) Garden beds must be made of materials that will not leach chemicals into the soil including, but not limited to, wood treated with chromated copper arsenate, reclaimed railroad ties, or tires.
(3) Any herbicide or pesticide must be applied pursuant to the product manufacturer's directions. The product must not be applied during program hours. Children must not apply the product, or have access to the garden during the manufacturer's prescribed waiting period following application.
(4) Commonplace toxic plants or plants with poisonous leaves (for example: Tomato, potato, or rhubarb) may be grown in the garden. An early learning provider must actively supervise children who are able to access a garden where commonplace toxic plants or plants with poisonous leaves are growing.
WAC 170-300-0235 Safe water sources.
(1) Hot and cold running water shall be supplied to early learning program premises.
(2) An early learning provider must use a Washington state certified water laboratory to test the program water supply for lead and copper within six months of the date this section becomes effective. All fixtures used to obtain water for preparing food or infant formula, drinking, or cooking must be tested prior to licensing and at least once every six years. Testing must be done pursuant to the local health jurisdiction and current EPA standards. A copy of the water testing results must be kept on the licensed premises. If the test results are at or above the current EPA action level, an early learning provider must immediately:
(a) Close the early learning program to prevent children from using or consuming water, or supply bottled or packaged water to meet the requirements of this chapter;
(b) Comply with the local health jurisdiction's directions for using and consuming water;
(c) Contact and advise the department of the water test results and steps taken to protect enrolled children; and
(d) Notify the department with plans to reopen the early learning program once lead and copper levels are below the current EPA action level.
(3) If an early learning program space receives water from a private well, the well must comply with the design, construction, and maintenance requirements of DOH and the local health jurisdiction.
(a) An early learning provider must comply with the local health jurisdiction and DOH's requirements for periodic water testing. Testing records must be stored in licensed space.
(b) Well water must be tested at least once every twelve months for coliform bacteria and nitrates by a state certified laboratory. To achieve desirable results the test must indicate:
(i) No presence of coliform bacteria; and
(ii) The presence of less than ten parts per million (ppm) for nitrates. If test results for nitrates are greater than five but less than ten ppm, the water must be retested within six months.
(c) If well water tests positive for coliform bacteria, or is greater than ten ppm for nitrates, the early learning provider must:
(i) Immediately stop using the well water in the child care premises; and
(ii) Immediately inform the local public health authority and the department of the positive test results.
(d) If directed by the local health authority, DOH, or the department, an early learning provider must discontinue child care operations until repairs are made to the water system and water tests indicate desirable results pursuant to (b) of this subsection.
(e) If the local health authority or DOH determine that child care operations may continue while an unsafe water system is being repaired, an early learning provider must:
(i) Provide an alternate source of water, approved by the local health jurisdiction, DOH, and the department; and
(ii) Repair the well or water systems as required by the local health jurisdiction or DOH until water tests indicate desirable results pursuant to (b) of this subsection.
(4) An early learning provider must immediately notify the department when the water connection to an early learning program space is interrupted for more than one hour, or the water source becomes contaminated:
(a) The department may require the early learning provider to temporarily close until the water connection is restored or the water source is no longer contaminated; or
(b) The early learning provider must obtain an alternative source of potable water approved by the local health jurisdiction or DOH. The amount of the alternative source of potable water must be sufficient to ensure compliance with the requirements of this chapter for safe drinking water, handwashing, sanitizing, dishwashing, and cooking.
WAC 170-300-0400 Application materials.
(1) An early learning program applicant must request from the department a plan review of the premises to be licensed prior to submitting a complete license application packet, and after completing a department-approved orientation. The applicant must submit a complete license application packet, per chapter 43.215 RCW, which includes:
(a) Professional and background information about the applicant:
(i) A completed department application form for the type of license being applied for (center or family home);
(ii) A copy of the applicant's department-approved orientation certificate;
(iii) A Washington state business license or a tribal, county, or city business or occupation license, if applicable;
(iv) Liability insurance, if applicable;
(v) Certificate of incorporation, partnership agreement, or similar business organization document, if applicable;
(vi) The license fee;
(vii) A copy of current government issued photo identification;
(viii) Copy of Social Security card or sworn declaration stating that the applicant does not have one;
(ix) Employer identification number (EIN) if applicant plans to hire staff; and
(x) Employment or education verification. For example, diploma, transcripts, or a sworn declaration stating that the applicant cannot verify education requirements.
(b) Information about the facility to be licensed:
(i) A floor plan, including use of proposed licensed and unlicensed space, with identified emergency exits and emergency exit pathways;
(ii) Certificate of occupancy, if applicable;
(iii) An on-site septic system inspection report within six months of the inspection, if applicable;
(iv) Well water testing results within six months of testing, if applicable;
(v) A lead or arsenic evaluation agreement, only for sites located in the Tacoma smelter plume (counties of King, Pierce, and Thurston); and
(vi) Lead and copper test results for drinking water.
(c) Program hours of operation, including closure dates and holiday observances;
(d) Information about early learning program staff:
(i) List of staff persons, volunteers, and household members, if applicable required to complete the background check process as outlined in chapter 170-06 WAC;
(ii) Resume for applicant, center director, assistant director, program supervisor, and family home lead teacher, if applicable; and
(iii) Three letters of professional reference for applicant, director, assistant director, program supervisor, and family home lead teacher.
(2) An applicant must submit the completed application packet at least ninety calendar days prior to the planned opening of the early learning program. The department will inspect the early learning program space and approve all application submissions required in this chapter prior to issuing a license:
(a) The ninety calendar days begins when the department receives a complete application packet.
(b) Incomplete application packets will be returned to the applicant for completion.
(c) An applicant who is unable to successfully complete the application and licensing process within ninety days may withdraw the application and reapply when the applicant is able to meet the licensing requirements.
(d) An applicant who is unable to meet the application requirements and has not withdrawn his or her application will be denied a license, pursuant to RCW 43.215.300.
(3) An applicant must include the following policy documents with the application, which will be reviewed by the department and returned to the applicant:
(a) Parent and program policies;
(b) Staff policies;
(c) An emergency preparedness plan;
(d) Health policies; and
(e) A plan to prevent exposure to blood and bodily fluids.
WAC 170-300-0410 License and program location.
(1) An applicant for a license under this chapter must be at least eighteen years of age.
(2) A licensee refers to the individual or organization:
(a) Whose name appears on a license issued by the department;
(b) Responsible for complying with the standards in this chapter, chapter 43.215 RCW including, but not limited to, liability insurance requirements pursuant to RCW 43.215.535, chapter 170-06 WAC DEL background check rules, and other applicable laws or rules; and
(c) Responsible for training early learning program staff on the foundational quality standards in this chapter.
(3) An early learning provider must comply with and implement all requirements in this chapter unless another code or ordinance is more restrictive (for example: A local municipal, building, or health authority code).
(4) An early learning provider must have the character, suitability, and competence pursuant to chapter 170-06 WAC to meet the needs of children in care.
(5) Early learning program space must be located:
(a) On a site free from environmental hazards;
(b) Where nonemergency services and utilities can serve the early learning program space; and
(c) In an area served by emergency fire, medical, and police during the hours the early learning provider provides care to children.
(6) An early learning provider must prevent child exposure to the following within and around the licensed premises:
(a) Lead based paint;
(b) Plumbing containing lead or lead solders;
(c) Asbestos;
(d) Arsenic, lead, or copper in the soil or drinking water;
(e) Toxic mold; and
(f) Other identified toxins or hazards.
(7) An early learning provider must place address numbers on the outside of the house or building containing the early learning program space, and the numbers must be legible and plainly visible from the street or road serving the premises.
(8) A license applicant planning to open an early learning program in the designated Tacoma smelter plume (counties of King, Pierce, and Thurston) must contact the state department of ecology (DOE) and complete and sign an access agreement with DOE to evaluate the applicant's property for possible arsenic and lead soil contamination.
WAC 170-300-0465 Retaining facility and program records.
(1) An early learning provider must keep all records required in this chapter for a minimum of five years.
(2) All records from the previous twelve months must be kept in the licensed space and be immediately available for the department or other state agency's review. Immediately accessible records include:
(a) Child records;
(b) Staff records; and
(c) Attendance records.
(3) Records older than twelve months but less than five years must be provided within two weeks of a written request by the department.
(4) An early learning provider must keep other required and applicable records available for department review according to each record's specific retention schedule. These records include:
(a) A nondiscrimination policy;
(b) Strengthening Families Program Assessment or a department-approved equivalent;
(c) Furniture, sleep, and play equipment forms and specifications;
(d) Inspection log for furniture and play equipment;
(e) Chromated copper arsenate test results, if applicable;
(f) Annual fire inspection by qualified fire professional;
(g) Annual inspection of chimney, wood stove, and fireplace;
(h) Monthly inspection to identify fire hazards and elimination of such hazards;
(i) Monthly testing of smoke and carbon monoxide detectors;
(j) Monthly fire extinguisher inspection and annual maintenance;
(k) Menus (six months) per CACFP;
(l) Food temperature logs per CACFP;
(m) Child incident and illness logs;
(n) Medication administration logs;
(o) Vaccination records for pets or animals housed at the early learning provider program;
(p) Private well and septic systems inspection and testing results;
(q) Lead and copper testing results;
(r) Center or family home cleaning schedule;
(s) Alternative cleaning, sanitizing, and disinfecting products approval from department health specialist;
(t) Cleaning log for large area rugs or carpets;
(u) Pesticide use (seven years);
(v) Monthly site visit from nurse consultant, if applicable;
(w) Tacoma smelter inspection results;
(x) Restraint and expulsion policy;
(y) Daily schedule;
(z) Curriculum planning time;
(aa) Parent or guardian handbook;
(bb) Documents from any department visits (inspections, monitoring, compliance agreements, safety plans);
(cc) Waivers or variances from department rules, if applicable;
(dd) Written emergency preparedness plan and drills;
(ee) Transportation policy;
(ff) Car insurance policy;
(gg) Termination of services policy;
(hh) Continuity of care policy; and
(ii) Health policy.