By: Brittany Flaherty Theis

Senate Bill 550 sought to impose lead testing requirements on school districts throughout the State. It contained provisions regarding the timing of the sampling, approved laboratories for analyzing the samples, and notification of parents and guardians. Its provisions amended the School Code, the Illinois Plumbing License Law, and the Local Governmental and Government Employees Tort Immunity Act, among other laws. In January, Senate Bill 550 was signed into law and became Public Act 99-0922 (the “Act”), effective January 17, 2017.  Discussed below are the amendments that impact school districts in Illinois.

For school buildings used for pre-kindergarten through fifth grade, the Act requires lead testing by:

December 31, 2017 if the building was constructed prior to January 1, 1987; and

December 31, 2018 if the building was constructed between January 2, 1987 and January 1, 2000.

By June 30, 2019, the Department of Public Health must determine whether similar testing should be required for school buildings constructed in whole or in part after January 1, 2000.

Prior to those deadlines, school districts must take two samples from each source of potable water, which means points at which water may be ingested by children or used for food preparation. They include access points such as drinking fountains, faucets on kitchen sinks used for food preparation, and sinks in classrooms used for children under first grade. The first sample must be taken after the water was standing for at least 8 hours, but not more than 18 hours. The second sample must be taken 30 seconds later.

Both samples must be analyzed by a lab accredited by the Illinois Environmental Protection Agency and the results sent to the Department of Public Health. If the samples taken in the school are all at or below 5 parts per billion, the school district may inform the public by posting on the school district’s website. If, however, the results exceed 5 parts per billion, the school district must promptly provide individual, written notification to parents and legal guardians that includes the test results and water source location(s) along with the U.S. Environmental Protection Agency’s website for information about lead in drinking water.

The sampling requirements are waived for school districts that conducted sampling between January 1, 2013 and January 17, 2017, so long as certain testing requirements were met. If a school district already tested its water sources for lead and the samples were analyzed by an Illinois Environmental Protection Agency-accredited lab, the school district must submit the results to the Department of Public Health within 120 days of the effective date of the Act.

Notably, the Act also amends Sections 17-2A and 17-2.11 of the School Code. Pursuant to the Act, school districts can now use the proceeds of taxes levied for fire prevention, safety, energy conservation, accessibility, school security, and specified repair purposes for sampling for lead in drinking water in schools, and for repairs and mitigation due to lead levels in the drinking water supply so long as all purposes for which the taxes were levied have been met. The Act requires the Department of Public Health to post guidance on mitigation actions for lead in drinking water and ongoing water management practices for schools.

The Act also authorizes transfers from the Tort Immunity Fund to the Operations and Maintenance Fund following published notice and a public hearing as found in Section 17-2A. Transfers authorized by Section 17-2A, as amended, are now also listed as an authorized use for taxes levied pursuant to the Local Governmental and Government Employees Tort Immunity Act. Together, these provisions grant school districts additional flexibility and discretion when allocating funds.

In addition to the funds discussed above, the owner or operator of a community water system is permitted by the Act to pay for the cost of the lab analysis and may impose a “lead hazard cost recovery fee” upon users to defray the costs.  School districts should plan to work with their local water supplier from the outset as local water suppliers may be a source of technical, and possibly financial, assistance. However, compliance with the Act is ultimately the school district’s responsibility.

Our experience in working closely with community water system operators indicates that it would be unlikely that such entities would be willing to impose a “lead hazard cost recovery fee” upon users, unless absolutely necessary.  However, community water system operators regularly interact with the Illinois Environmental Protection Agency and the Illinois Department of Public Health as well as various water quality testing facitlities and may be very helpful in assisting a school district in completing accurate and timely testing as required under the Act.  In addition, should a lead hazard be detected, community water system operators may be an invaluable resource in locating the origin of the hazard.

The attorneys at Whitt Law regularly work with both school districts and water system operators as well as the various Illinois regulatory agencies and water quality testing providers.  Our attorneys are available to advise school districts of their options in complying with the Act based upon their unique circumstances.  Please contact Whitt Law Attorneys James R. Dougherty or Brittany Flaherty Theis if you have questions regarding compliance with the Act.

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