There’s no doubt that some attention has been given to the water quality at Oregon schools in the past month. But the issue has been around for some time. Since the late 1980s, concerns have been raised about lead leaching from pipes and faucets into water in schools. Yet no state or federal law requires schools to sample or take action to address lead in drinking water.

But under the Safe Drinking Water Act (the “SDWA”),[1] the United States Environmental Protection Agency (“EPA”) must develop a guidance program to address this issue. The guidance that EPA has developed instructs that the 20 parts per billion (“ppb”) (or 0.020 mg/l) level is the recommended “action level” for the amount of lead in drinking water that specifically applies in evaluating sampling results from schools and day care facilities. EPA recommends that schools and facilities take additional actions to evaluate and address specific problem areas (e.g., faucets and fountains) for which the sampling results show an exceedance of this level.

This level is different from the maximum contaminant level—15 ppb (or 0.015 mg/l)—for lead in a public water system. As discussed below, certain exceedance of this level in water delivered to end-of-the-pipe users, like homes and schools, requires response actions by the public water supplier.

Safe Drinking Water Act and the Public Water Systems

EPA regulates lead in drinking water under the SDWA. Enacted in 1974, the SDWA controls drinking water provided by public water systems, rather than end-of-pipe water users. A “public water system” is defined in part as a system for the provision to the public of water for human consumption through pipes or other constructed conveyances that serves at least 15 service connections or regularly serves at least 25 individuals.[2] So unless a school has its own water supply, it is not a regulated “public water system.”

In 1991, EPA issued the Lead and Copper Rule to control lead and copper in drinking water for such public water systems. [3] Under this rule, public water systems are required to conduct annual tests for lead and other contaminants in drinking water. If lead concentrations exceed 15 ppb in more than 10 percent of samples collected at high-risk residences in a year, the operator of the public water system must take steps to reduce lead concentrations. These steps include treating water in the system to make it less corrosive and less likely to cause lead in plumbing systems to leach into drinking water. Moreover, since 1986 the sale of lead pipe, solder, and flux for plumbing purposes has been illegal. Public water systems are required to use lead-free plumbing components when old plumbing is replaced.

Guidance on Lead in Schools Drinking Water

With respect to schools, in 1988, Congress passed the Lead Contamination Control Act (the “LCCA”).[4] This SDWA amendment specifically aimed to identify and reduce lead in drinking water at schools that are end-of-pipe users. The LCCA had the goal of eliminating drinking water coolers containing lead. To that end, EPA was required to publish a list of each brand and model of water cooler that contained lead.

It also required EPA to developed guidance to identify and address lead problems in school’s drinking water. To that end, and through the years, EPA has issued various guidance for schools in testing, evaluating, and remediating lead levels in school drinking water. This include the current applicable guidance, 3T’s for Reducing Lead in Drinking Water in Schools (the “3T’s Guidance”).

With respect applicable to schools that get their water from a public water system, the 3T’s Guidance provides the following sampling technique:

“EPA recommends that schools collect 250 mL first-draw samples (i.e., samples of stagnant water before any flushing or use occurs) from water fountains and other outlets used for consumption, and that the water fountains and/or outlets be taken out of service if the lead level exceeded 20 ppb. The sample was designed to pinpoint specific fountains and outlets that require remediation (e.g. water cooler replacement). The school sampling protocol maximizes the likelihood that the highest concentrations of lead are found because the first 250 mL are analyzed for lead after overnight stagnation.” 3T’s Guidance at page 12.

Therefore, under the 3T’s Guidance, and unless a school has its own water supply (e.g., has a well), testing results exceeding 20 ppb trigger certain recommended actions that the school can take, including resampling or shutting down the faucet.

Conclusion

The State of Oregon has recently issued a recommendation that all schools test for lead in drinking water this summer. While schools are encouraged to apply the 3T’s Guidance on evaluating, testing, and remediating lead in drinking water, they may also benefit from inquiring with their public water supplier on the quality of the water coming into the school buildings. This will help schools have a reliable data set to identify problem areas and to develop specific response action to ensure that safe drinking water is available for the children when they return in the fall.

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[1] 42 USC §§ 300f, 300g et seq., 300j-24.

[2] 42 USC § 300f(4)(A).

[3] 40 CFR pt 141, subpt I.

[4] 42 USC § 300j-24.