On January 17, 2017, a new Illinois state law took effect requiring certain schools and DCFS licensed day care centers to test for lead in drinking water. The Lead Testing Law, Public Act 099-0922, aims to ensure that public drinking water is safe for consumption. The Law’s lead testing requirements impact certain school and park districts, and all municipalities are potentially impacted by the Law’s construction notice requirements. Agencies have at least until the end of the year to bring themselves into compliance with the testing requirements, but you can start to prepare now. This client update summarizes the Law’s requirements and how they impact your agency.

Testing Requirements

Lead Testing in Schools: The Lead Testing Law directly impacts public school districts but the changes come through the Plumbing License Law, which is amended to include a new section, 225 ILCS 320/35.5, that requires the following:

  • Who is covered? Lead testing must be conducted at any building constructed on or before January 1, 2000, and occupied by more than 10 children or students, pre-kindergarten through grade 5. The Law applies to all types of schools – public, private, charter, or nonpublic day or residential educational institutions.
  • What sources must be tested? Tests must be conducted at any “point at which non-bottled water that may be ingested by children or used for food preparation exits any tap, faucet, drinking fountain, wash basin in a classroom occupied by children or students under grade 1, or similar point of use.” However, bathroom sinks and wash basins used by janitorial staff are excluded.
  • How will water be tested? Samples must be submitted to an Illinois Environmental Protection Agency-accredited laboratory. Results must then be reported to the Illinois Department of Public Health within 7 business days.
  • What is the acceptable amount of lead? The cutoff is 5 parts per billion; any amount equal to or less than the cutoff is acceptable.
  • What happens if my school tests above 5 parts per billion? The school district shall promptly provide an individual notification of the sampling results to the parents or legal guardians of all enrolled students. Additionally, the Illinois Department of Public Health will provide guidance on or before April 16, 2017, that addresses what remediation must occur to clean the water system.
  • What else do I have to do? All school districts that have to perform tests under the Law shall “notify the parents and legal guardians of enrolled students of the sampling results from their respective school buildings.”
  • When does the testing have to be performed? For school buildings constructed prior to January 1, 1987, testing must be performed by December 31, 2017; and for school buildings constructed between January 2, 1987, and January 1, 2000, testing must be performed by December 31, 2018.
  • What if my district has already tested for lead? The Law recognizes that given the recent public concern surrounding lead in public drinking water, many school districts have already tested for lead. Those school districts may seek a waiver from the Lead Testing Law’s requirements if:
  • The school district collected at least one 250 milliliter or greater sample of water from each source of potable water that had been standing in the plumbing pipes for at least 6 hours and that was collected without flushing the source of potable water before collection;
  • An Illinois Environmental Protection Agency-accredited laboratory analyzed the samples;
  • Test results were obtained between January 1, 2013, and January 17, 2017; and
  • Test results are submitted to the Department of Public Health by May 17, 2017.

Lead Testing in DCFS Licensed Day Care Centers: The Leading Testing Law adds a new section to the Child Care Act, 225 ILCS 10/5.9, which imposes lead testing requirements on licensed day care centers, day care homes and group day care homes.

  • Who is covered? The Law applies to DCFS-licensed day care centers constructed on or before January 1, 2000, that serve children under the age of 6. Note that most preschools operated by park districts are licensed as “day care centers” by DCFS. If your preschool facility was constructed on or before January 1, 2000, serves children under the age of 6, and is licensed by DCFS as a day care center, it is covered by the Lead Testing Law.
  • What does the Law require? The Law does not prescribe specific testing standards. Rather, it requires that DCFS, in consultation with the Department of Public Health, adopt rules that prescribe the procedures and standards to be used in assessing levels of lead in licensed day care centers. The rules, once promulgated, must include “provisions regarding testing parameters, the notification of sampling results, training requirements for lead exposure and mitigation.”
  • When will this be enforced? DCFS has until January 1, 2018, to adopt the rules and procedures described above. DCFS will then enforce the rules during the initial application and license renewal process. In other words, if your district operates a preschool or day care program that is already licensed by DCFS and covered by the new Law, DCFS will not enforce the new lead-testing rules against your program until the center next applies for renewal of its license.
  • What should I do now? You are not required to do anything until the rules are released. Whether you choose to test for lead before the requirements are issued is an internal policy decision.

Financial Authority

The Law’s testing requirements are limited to schools and DCFS licensed child care facilities for young children. However, the financial authority provided to all public agencies, including municipalities and operators of all public drinking systems, encourages public entities to test for lead in their water supplies even if the Law does not require them to do so.

Municipalities: A new section is added to the Illinois Municipal Code, 65 ILCS 5/11-150.1-1, allowing any municipality that operates a “waterworks system”[1] and that incurs costs to comply with the new lead testing requirements in the Illinois Plumbing License Law to “by ordinance, collect a fair and reasonable fee from users of the system in order to recover those reasonable costs.”

Schools: School districts may now levy taxes, borrow money, and issue bonds for “sampling for lead in drinking water in schools, and for repair and mitigation due to lead levels in the drinking water supply.” 105 ILCS 5/17-2.11. The amendment also includes “required safety inspections” as a basis for taxing, borrowing, and issuing bonds.

In a change that could apply to situations beyond lead testing, a new type of interfund transfer is now allowable. The School Code has allowed for transfers in any district having fewer than 500,000 residents between “(1) the Educational Fund to the Operations and Maintenance Fund or the Transportation Fund, (2) the Operations and Maintenance Fund to the Educational Fund or the Transportation, or (3) the Transportation Fund to the Education Fund or the Operations and Maintenance Fund.” 105 ILCS 5/17-21A. The law now includes a new category of transfers: “(4) the Tort Immunity Fund to the Operations and Maintenance Fund.”

EPA authority: The State’s Water Revolving Fund, a low-interest source of loans for public water projects, now offers loans to fund work undertaken related to the Federal Safe Drinking Act. 415 ILCS 5/19.3(d)(7). In exchange, the Illinois Environmental Protection Act is amended to require that the “owner or operator of each community water system[2] in the State shall develop a water distribution system material inventory that shall be submitted in written or electronic form to the Agency on an annual basis commencing April 15, 2018.” 415 ILCS 5/17.11.

Notice of Repairs

The Illinois Environmental Protection Act is amended to require community water suppliers to provide at least 14 days prior written notice to each residence that could potentially be affected by work to repair or replace water mains or lead service lines. Water meter replacements must also now be accompanied by written notice to the affected residence at the time the work is performed. The notification shall include: (1) a warning that the work may result in sediment, possibly containing lead, in the residence’s water supply; (2) information concerning best practices for preventing the consumption of lead in drinking water; and (3) information regarding the dangers of lead in young children.  415 ILCS 5/17.11(e)(1)-(2).

Notice for residents of a multi-unit building is satisfied by posting written notice at the building’s primary entrance.  415 ILCS 5/17.119(e)(5). If the scope of the construction or repair work will impact an entire community, work occurs on an emergency basis, or the water system is “a small system” (that term is not defined in the Law), then notice can given through local media, social media or similar means. 415 ILCS 5/17.11(e)(4). If work occurs in a community of a significant proportion of non-English speaking consumers, notification must be given in the appropriate language(s).  415 ILCS 5/17.11(e)(3).

Agencies can seek a waiver from the notice requirements from the Illinois Environmental Protection Agency if the water system (1) was originally constructed without lead; (2) the residential structures were constructed under local building codes that categorically prohibited lead construction material or, were in fact, constructed without lead; and (3) no lead sentiment “is likely to be present.”  415 ILCS 5/17.11(e)(7).

Take Aways

As much as the Lead Testing Law requires, what it does not require is just as notable.

  • There are no requirements for schools serving students above grade 5, or for day care facilities serving children age 6 or older.
  • There are no penalties imposed on covered entities that have high levels of lead.
  • A one-time test to determine whether an unacceptable lead level exists satisfies the testing requirements. Any repeat testing is not required by law, but would be a policy decision for your agency.
  • While each covered entity foots the bill for testing its own systems, the Law provides significant flexibility in how to pay the costs.

In combination, these points indicate that the Lead Testing Law is focused on the populations of young children most susceptible to harmful health effects from lead exposure. The Law also recognizes that the presence of a concerning level of lead in a public water supply is often an outcome of an aging water supply system, and not the fault of a single entity. Rather than imposing penalties or fines on any schools or child care centers, the Law’s focus is to clean up any problem drinking water sources as quickly as possible.

If you have questions about any of these issues, please contact your Tressler attorney.

[1] Waterworks system “means and includes a waterworks system in its entirety or any integral part thereof, including mains, hydrants, meters, values, standpipes, storage tanks, pump tanks, intakes, wells, impounding reservoirs, pumps, machinery, purification plants, softening apparatus, and all other elements, useful in connection with a water supply or water distribution system.” 65 ILCS 5/11-139-1.

[2] A community water system is a system “that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.”  35 Ill. Admin. 611.101.