SENATE DOCKET, NO. 1985        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 456

The Commonwealth of Massachusetts

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PRESENTED BY:

Joan B.  Lovely

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act ensuring safe drinking water at schools and early childhood programs.

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PETITION OF:

SENATE DOCKET, NO. 1985        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 456

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act ensuring safe drinking water at schools and early childhood programs.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 111 of the General Laws is hereby amended by inserting after Section 160G the following Section:-

Section 160H. The Safe Drinking Water at School Act

(a) Definitions

As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Commissioner,” the Commissioner of The Department of Environmental Protection.

“Department,” the Department of Environmental Protection.

“Drinking water outlet,” any water fountain, faucet, tap other end-point for delivery of water regularly used for drinking or food preparation, including ice- making and hot drink machines.

“Early childhood program,” a center-based child care facility.

“Elevated lead level,” a lead concentration in drinking water that exceeds one part per billion.

“Lead service line,” a pipe and its fittings, which are not “lead free” as defined under section 1417 of the federal Safe Drinking Water Act (42 U.S.C. 300g–6) that connect a drinking water main to a building inlet.

“Local Board of Health,” any Board of Health authorized under Sections 26-33, inclusive, of Chapter 111 of the Massachusetts General Laws

“NSF certified filters,” Any filter certified by the National Sanitation Foundation to remove lead from drinking water.

“School,” any facility operating for the development and education of children – from pre-school through high school, whether operated by a school district, charter, or non-public entity.

“Technical guidance,” the technical guidance for detecting and remediating lead in drinking water at schools issued the department pursuant to subsection (2) of section (f) of this Act.

(b) Lead Service Line Replacement

(1) Public water systems shall fully replace lead service lines at every school district, charter school, nonpublic school, and early childhood program they serve within three years of the effective date of this act. Said replacement shall be paid for by the public water system, regardless of ownership of any portion of the service line, and shall be performed in coordination with the relevant municipality and school or early childhood center, and in conformity with the department’s technical guidance.

(2) Each public water system shall provide every school district, charter school, nonpublic school, and early childhood program it serves with the information in its possession relating to the location of lead service lines within 30 days of the effective date of this act. Each school district, charter school, nonpublic school and early childhood program shall determine which of its buildings receive drinking water through lead service lines and report the same to the department within 60 days of the effective date of this act. Within 90 days of the effective date of this Act, the department shall issue an enforceable order to each public water system to replace all lead services lines at schools and early childhood programs. 

(3) Lead service lines shall be disposed of in accord with hazardous waste laws, and shall not be landfilled or incinerated.

(c) Preventing Lead Contamination. 

Each school and early childhood program with one or more tests showing elevated lead levels in water from any drinking water outlet, including but not limited to tests conducted under the Commonwealth’s “Assistance Program for Lead in School Drinking Water” or under section (d) of this act, shall:

(1) immediately shut off the drinking water outlet(s) in question until measures are undertaken to ensure that the water from the drinking water outlet(s) will no longer have elevated lead levels

(2) within six months of receiving a test showing elevated lead levels, develop and adopt a plan of action to prevent elevated lead levels in all water used for drinking or cooking. Said plan of action shall include:

(i) installing and maintaining NSF certified filters at all faucets, fountains, or other drinking water outlets within eighteen months of the effective date of this act. A school or early childhood program may, consistent with other obligations in law, remove select drinking water outlets from operation in lieu of installing filters on those drinking water outlets, so long as every child has reasonable access to free, safe drinking water

(ii) replacing lead-bearing fixtures and plumbing with lead soldering where feasible and cost-effective, within two years of receiving elevated lead level test results

(iii) may also include other measures to reduce lead contamination of water, consistent with the department’s technical guidance in section (f)(2) of this Act

(3) Aside from the requirement to install and maintain NSF filters at all drinking water outlets in subsection (2)(i), nothing in this section shall prevent a school or early childhood program from adjusting its plan of action, especially in response to public input, consistent with the department’s technical guidance.

(4) A school or early childhood program may seek the assistance of local board of health, public water system, or the department to help ensure its compliance with the provisions of this section.

(5)  Nothing in this section contravenes requirements for more timely remediation when tests show drinking water outlets with elevated lead levels, as provided in subsection (c)(2) of this Act.

(d)  Testing and Immediate Remediation

(1) Each school and early childhood program shall undertake annual testing of each drinking water outlet in each school for the presence of lead. Each test for lead shall be conducted by a laboratory certified for this purpose by the commissioner, in accordance with the sampling and testing methods specified in the department’s technical guidance. If a school or childhood education program has not tested its drinking water outlets for lead under the Commonwealth’s “Assistance Program for Lead in School Drinking Water,” it shall conduct initial tests for lead at each drinking water outlet no later than 90 days after the effective date of this act.

Unless the commissioner determines, on a case-by-case basis, that a greater or lesser frequency of testing is necessary or sufficient to ensure the public health, including but not limited to timely testing after replacement of lead service lines.

(2) Nothing in this section shall prevent a school district, charter school, or nonpublic school from conducting more frequent testing than required pursuant to subsection (d)(1) of this section.

(e)  Transparency and Public Right to Know

(1) Each school and early childhood program shall:

(i) submit to the Department of Environmental Protection, the Department of Education, and the Department of Health, as soon as practicable-

(A) its plan of action for preventing lead contamination of water, pursuant to section (c)(2) of this Act, and modifications thereto

(B) progress on implementing its plan of action

(C) information on tests conducted pursuant to section (d), including, but not limited to, the date the testing was completed, the location and type of each drinking water outlet tested, the complete results of each test, and any immediate measures being taken in response to tests showing drinking water outlet(s) with elevated lead levels.

(ii) maintain copies of the information submitted pursuant to paragraph (i) of this subsection in a suitable location for inspection by the public, and on the Internet website of the school or early childhood program.

(iii) notify parent, teacher, and employee organizations of the availability of the information submitted pursuant to paragraph (i) of this subsection.

(iv) designate a person to serve as the contact person for communications with the department and the public regarding the lead testing and remediation activities.

(v) If testing conducted pursuant to section (d) reveals an elevated lead level at a drinking water outlet, the school or early childhood program shall, within one business day, notify teachers, other school personnel, and parents directly, through written notice, electronic mail, or other means approved by the department. Such notification shall include, but need not be limited to:

(A) a summary of the results of the testing conducted, and information on the availability of the complete test results for public inspection at a suitable location and on the Internet website of the school or early childhood program

(B) a description of any remedial measures being taken pursuant to sections (c) and (d) of this Act

(C) general information on the public health effects and risks posed by lead in drinking water, and information on the availability of additional resources concerning lead in drinking water, as

outlined in the technical guidance.

(D) the name and contact information of the person designated pursuant to subsection (e)(1)(iv) of this section to communicate with the public.

(vi) At each drinking water outlet, the school or early childhood program shall post an electronic QR code with access to information on testing and remediation for that drinking water outlet.  Said information shall include the maintenance schedule and log for installed NSF filters, unless the drinking water outlet is equipped with a clearly visible indicator for filter replacement.

(f) Regulations

(1) Notwithstanding the provisions of the “Administrative Procedure Act” of Chapter 30A of the Massachusetts General Laws, to the contrary, the Department of Environmental Protection, in

consultation with the Department of Education and the Department of Health, may adopt, after notice, interim rules and regulations necessary to implement the provisions of this Act. The rules and regulations shall be effective as regulations immediately upon filing with the Office of Administrative Law and shall be effective for a period not to exceed 18 months, and may, thereafter, be amended, adopted, or readopted by the department in accordance with the

provisions of the “Administrative Procedure Act.”

(2) The Department shall issue technical guidance that is at least as protective of the public health as the technical guidance for reducing lead in drinking water at schools issued by the United States Environmental Protection Agency. Provisions of the technical guidance related to testing to determine the presence and levels of lead in water shall be designed to maximize detection of lead in water, and therefore prohibit sampling or testing methods that tend to mask lead contamination, including pre-stagnation flushing and removal of aerators prior to sampling. The department shall provide the technical guidance, a list of laboratories certified to conduct lead testing, and any other information the department deems appropriate, to each school district, charter school, and nonpublic school and early childhood program, and post on the same on the department’s website, within 45 days of the effective date of this bill.

(g)  Hardship Waiver

(1) If a school district or early childhood program is unable to comply with some or all of the requirements of this act, the superintendent of the school district, the administration of a private day or residential school, or the board of trustees of a charter school, may request a hardship waiver of some or all of the act’s requirements from the commissioner. No less than 30 days prior to requesting a hardship waiver, a public school district or early childhood program shall notify parents and hold at least one public meeting to present the proposed waiver in detail, disclose health risks of lead in water, and allow meaningful public input on the decision to request a waiver.

The Department, in consultation with the Department of Public Health and the Department of Education, shall make available to public schools and childhood education programs a list of funding sources that a public school or childhood education program may access to facilitate compliance with requirements of this act.

(2) Nothing in this act shall be construed to place additional requirements on a school or early childhood program that, prior to the effective date of this act, has already taken measures which, in the judgment of the department, permanently eliminate the risk of elevated lead levels in its water at all drinking water outlets.