By Douglas E. Gerhardt and Gene Kelly
The increased focus on potability of drinking water and particularly the water provided in schools raises questions about the legal and practical obligations imposed on schools regarding testing drinking water. While legally not yet mandated (legislation is likely to be introduced soon to mandate it), school districts would do well to conduct routine testing of drinking water.
School districts must ensure a safe and healthy learning environment for students, and regular, proper testing of drinking water should be seen as an integral part of fulfilling that obligation. Ensuring water does not contain potential contaminants is a measure which, even if not required by law, is recommended best practice.
In terms of legal requirements, state and federal laws imposed obligations on owner/operators of water systems, namely the municipalities which provide the source water. The Safe Drinking Water Act (42 USC § 300g-6) (SDWA), a federal law enacted in 1974, is implemented and monitored by the U. S. Environmental Protection Agency. The SDWA requires public notice by owner/operators of public water systems depending upon the action level reached when testing for certain contaminants, such as lead and copper. The 1986 amendments to the SDWA required EPA to set standards limiting the concentration of lead. EPA issued an initial lead and copper regulation in 1991, and in 2011 Congress provided additional standards for what can be considered “lead free” plumbing.
New York also requires testing by owner/operators of water systems. Test results provide the foundation for notification requirements, again, by owners and operators of water systems that exceed lead action levels. A water system is defined as “a community, non-community or non-transient non-community water system which provides water to the public for human consumption through pipes or other constructed conveyances, if such system has at least five service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year” (10 NYCRR §5-1.1). The same regulation requires owner/operators of “a water system that exceeds the lead action level based on first-draw lead tap samples” to provide notice to the public. (10 NYCRR §5-1.44)
School districts generally are not water system operators under these definitions so they are not required to test. But as a best practice it is recommended that they should. And, if they derive their water for a particular building from a well source on site, they become subject to water system regulations and must test. Testing becomes a proactive endeavor which can help ensure good water is provided for cooking and drinking. Even without mandatory testing, checks will demonstrate a proactive approach toward the health and safety of all who work in and use schools. Communities have come to expect that school districts not meet the bare minimum requirements. When it comes to student and staff safety issues, communities expect the district to go “above and beyond” what is minimally required. Doing so may even ward off lawsuits. See NY Muni Blog article “Municipal Alert: Lead in Drinking Water,” published March 24, 2016.
Once a school district determines it will test its water, it is wise to ensure this is done correctly. School districts are advised not to go at it alone. The recommended protocols and procedures for proper water sample collection are defined in the EPA’s 3Ts for Reducing Lead in Drinking Water in Schools. The protocol requires the collection of two separate samples at each water source location. The first is identified as the “first draw” and is representative of the water contained in the faucet/fixture. The “second draw” sample is intended to represent water contained in the fixture’s immediate plumbing system. The samples are collected following routine use of the fixtures/locations 8-18 hours before the sampling event. Ideally, the water should be allowed to sit in the pipes/fixtures unused for this period. This could mean over a weekend.
In addition to the sampling procedure in the EPA guidance document, specific additional sampling from a representative percentage of the source locations can further pinpoint problem areas during the initial base testing event further eliminating repeat sampling and lost time. Again, knowing how and where to conduct these tests is critical to obtaining accurate and reliable samples. Deviations from the recommended sampling protocol or procedures can result in a loss of data integrity and result in costly resampling. Performance of the testing should be completed by an objective professional firm, experienced in the sampling and versed in the ability to interpret the resulting data. While this could be seen as an additional cost to a school district (as opposed to using staff) it is a cost well worth making. Schools might want to consider the testing cost an investment in its buildings and those who use them.
The authors would like to thank Scott Norstrand and John Rigge at the environmental engineering firm Barton & Loguidice for their expertise and assistance in the development of this article.