State Aid for the Testing of Water for Potential Lead Contamination
Updated Guidance
Revisions to Public Health Law (PHL) §1110, which governs school potable water testing and standards, went into effect December 22, 2022. The key revisions to the law which will require changes to Subpart 67-4 include:- The revised action level of lead in drinking water is 5 parts per billion (ppb), reduced from 15 ppb.
- School buildings deemed “lead-free” are no longer exempt from testing requirements.
- Should it be necessary to provide water to school occupants following an outlet being taken out of service due to an action level exceedance, it must be provided free of charge.
- Copies of lead sampling results including laboratory reports and any lead remediation plans must be made available to the public and posted on the school’s website.
- Compliance testing will occur on a triennial (every 3 years) schedule.
Please refer to NYS Department of Health website for any questions regarding these revisions: DOH Lead Testing of School Drinking Water
Legislation and Regulation
Chapter 296 of the Laws of 2016 enacted amendments to NYS Public Health Law requiring all school districts and Boards of Cooperative Educational Services (BOCES) to test all potable water outlets for lead contamination, to remediate contamination where found, and to notify parents of children and the public of test results.
Chapter 296 added a new subdivision 6-h to NYS Education Law Section 3602. This subdivision provides building aid to school districts for the testing and filtering of potable water systems for lead contamination, and other effective remedial measures for such costs incurred prior to July 1, 2019. Beginning July 1, 2019, additional building aid pursuant to this subdivision shall include approved expenses for testing of potable water systems for lead contamination pursuant to section eleven hundred ten of the public health law. In addition, subdivision 5 of section 1950 of the Education Law was amended to make approved expenses for testing eligible for BOCES Aid.
On September 6, 2016, the New York State Department of Health issued regulations on water testing and remediation. On May 9, 2018, the Lead Testing in School Drinking Water final regulation was published in the State Registrar, replacing the emergency regulation: NYS DOH Regulation 67-4: Lead Testing in School Drinking Water
The approved cost of testing in all occupied buildings owned or leased by a school district or BOCES is eligible for aid (not just instructional buildings). The approved cost of testing of water taps located on the site of a school district or BOCES building, such as water taps in a concession building, or an exterior drinking fountain, is an approved expense for aid by association with the school building.
Districts and BOCES should consult section 67-4 of the NYS Department of Health Regulations (see link above) for the testing dates and deadlines applicable to their schools.
School districts:
School districts are eligible to receive aid pursuant to NYS Education Law 3602 6-h on testing activities. Aid will equal base year approved expenditures multiplied by the building aid ratio defined pursuant to NYSEL 3602 (6)(c) (the same ratio as that used for Building Condition Survey Aid).
Districts must report testing costs and related information on the State Aid Management System (SAMS) Form FB Schedule W: Water Testing.
BOCES:
The cost of testing in BOCES facilities should be considered an (001) administrative expense and allocated among the Board’s component school districts in the same manner as other administrative expenses. The testing portion of the expense will generate BOCES Administration Aid in the year following the year in which costs are incurred. BOCES should include expense for testing in their SAMS submission of Schedule 4 Administrative Expense.
Both BOCES and school districts must retain detailed documentation substantiating the testing claimed for aid and must be able to provide such documentation upon request of the SED Office of Facilities Planning and/or the State Aid Office. Pursuant to Section 67-4.7 of the NYS Dept. of Health regulations, districts and BOCES must also “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 (of Health), local health department, or State Education Department, upon request.
School districts are encouraged to contact the SED Office of Facilities Planning with any questions about planned remedial measures and/or whether planned measures are aidable under NYSEL 3602 (6). (518-474-3906)